Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained. (b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan. (c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans. (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless: (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans; (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied; (iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and (v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 6 contracts
Samples: Third Amended and Restated Credit Agreement (Equitrans Midstream Corp), Credit Agreement (EQM Midstream Partners, LP), Credit Agreement (EQT Midstream Partners, LP)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an aggregate amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the prior approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall become effective and no specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be provided under this Section 2.17 unless:
no earlier than the Term Loan Maturity Date, (iii) no Default or Event of Default shall exist at the time average life to maturity of the request Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or at the time Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the proposed Incremental Other Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the . The Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, promptly notify each Lender as to the extent applicable, by each effectiveness of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.each
Appears in 5 contracts
Samples: First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings LLC)
Incremental Term Loans. (a) The Borrower shall have On the right from time terms and subject to time during the term conditions of this Agreement, and subject if there is to the terms and conditions set forth in this be an Incremental Term Loan Borrowing pursuant to Section 2.17, to request in writing incremental term loans (the “each Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Lender and New Lender that has an Incremental Term Loan Agreements. Such notice Commitment with respect to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested Loan Borrowing hereby severally agrees to be made (which shall not be less than three (3) Business Days nor more than 60 days after advance to the date of such notice (which time periods may be modified or waived at Borrower in a single advance on the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Effective Date specified for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything Loan Borrowing pursuant to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing Section 2.17 an Incremental Term Loan pursuant in Dollars; provided, however, that (A) the principal amount of the Incremental Term Loan made by such Incremental Term Lender or New Lender shall not exceed the Incremental Term Loan Commitment of such Incremental Term Lender or New Lender with respect to such requestIncremental Term Loan Borrowing and (B) is required the aggregate principal amount of all Incremental Term Loans made by all such Incremental Term Lenders and New Lenders shall not exceed the aggregate amount of all Incremental Term Loan Commitments with respect to be obtained.
(b) Any such Incremental Term Loan Borrowing. The Incremental Term Loans shall be made, at made on a pro rata basis by the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “applicable Incremental Term Lender”); provided that any Lenders and New Lenders in accordance with their respective Incremental Term Proportionate Shares of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Borrowing, with such Incremental Term Lender under this Agreement by execution and delivery Loan Borrowing to be comprised of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an by each such Incremental Term Lender and any or New Lender equal to such Incremental Term Lender’s or financial institution approached to provide New Lender’s Incremental Term Proportionate Share of such Incremental Term Loan Borrowing. The Borrower may not reborrow the principal amount of an Incremental Term Loan may elect after repayment or decline, in its sole discretion, to provide such Incremental Term Loanprepayment thereof.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 3 contracts
Samples: Credit Agreement (Arc Document Solutions, Inc.), Credit Agreement (Arc Document Solutions, Inc.), Credit Agreement (Arc Document Solutions, Inc.)
Incremental Term Loans. (a) The In the event that the Borrower shall have the right from time wishes to time during the term add one or more tranches of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by ), it shall notify the Administrative Agent in writing of the amount of such proposed Incremental Term Lenders pursuant to one or more Loans (such notice, an “Incremental Term Loan Agreements. Such notice to Notice”), and the Administrative Agent shall set forth the date on which notify each Lender of such proposed Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of and provide such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for additional information regarding such Incremental Term Loans as an attachment theretoany Lender may reasonably request. The Borrower may, at its election, (i) offer one or more of the Lenders or (ii) offer one or more additional banks, financial institutions or other entities (a “New Term Lender”) the opportunity to participate in all or a portion of the Incremental Term Loans; provided thatthat an Affiliate of the Borrower may not be a New Term Lender. Each Incremental Term Loan Notice shall specify which Lenders and/or New Term Lenders the Borrower desires to participate in such Incremental Term Loans. The Borrower or, notwithstanding if requested by the Borrower, the Administrative Agent, will notify such Lenders and/or New Term Lenders of such offer.
(b) Notwithstanding anything to the contrary contained herein in this Section 2.20, (i) in no event shall any transaction effected pursuant to this Section 2.20 cause the ratio of Consolidated Net Debt to Annualized Borrower EBITDA, calculated on a pro forma basis after giving effect to the borrowing of the proposed Incremental Term Loans and the use of proceeds thereof and of any concurrent incurrence of Revolving Credit Loans (but without giving any effect to any proceeds thereof received for purposes of determining Consolidated Net Debt in any event), to exceed 6.50 to 1.00, (ii) the Incremental Term Loans shall (A) rank pari passu in right of payment and of security with the Revolving Credit Loans and any then outstanding Term Loans and (B) not mature earlier than the Term Loan Maturity Date for the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date, (iii) the weighted average life to maturity of any Incremental Term Loan shall be greater than or equal to the then remaining weighted average life to maturity of the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date; provided that up to $250,000,000 in the aggregate of such Incremental Term Loans may be made without regard to clause (ii)(B) and this clause (iii); provided, however, that no Incremental Term Loans may mature earlier than the Revolving Credit Termination Date, (iv) no Lender shall have any obligation to participate in any Incremental Term Loans unless it agrees to do so in its sole discretion and (v) with respect to any Incremental Term Loans made on or prior to the six month anniversary of the 2018 Refinancing Amendment Effective Date, if the total yield in respect of any Incremental Term Loan Agreement(including any upfront fees, any interest rate floors, and any OID, with upfront fees and OID being equated to interest rates as reasonably determined by the Administrative Agent based on an assumed four-year life to maturity, but excluding any arrangement, underwriting or similar fee paid by the Borrower) (the “Incremental Term Margin”) exceeds the total yield for the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date (including any upfront fees, any interest rate floors, and any OID, with upfront fees and OID being equated to interest rates as reasonably determined by the Administrative Agent based on an assumed four-year life to maturity, but excluding any arrangement, underwriting or similar fee paid by the Borrower) by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to equal the Incremental Term Margin minus 50 basis points.
(c) Commitments in respect of Incremental Term Loans shall become effective under this Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Term Loan, if any, each New Term Lender, if any, and the Administrative Agent. The 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 the Administrative Agent to effect the provisions of this Section 2.20. The effectiveness of any Incremental Term Loan Amendment shall be subject to the satisfaction on the date thereof (the “Incremental Term Loan Closing Date”) of the following conditions precedent: (A) the delivery by the Borrower to the Administrative Agent of a certificate signed by an authorized officer of each Loan Party certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan Amendment; (B) pro forma compliance after giving effect to any Incremental Term Loan Amendment (and the making of any Incremental Term Loans) with Section 7.1 together with updated Projections of the type referred to in Section 6.2(c) giving effect to such Incremental Term Loan Amendment and the making of any Incremental Term Loans; (C) payment of fees and expenses in connection with such Incremental Term Loan Amendment prior to or simultaneously with the effectiveness of such Incremental Term Loan Amendment; and (D) if reasonably requested by the Administrative Agent, delivery of customary legal opinions from counsel substantially consistent, to the extent applicable, with those delivered on the Initial Amendment Date and reasonably satisfactory in form and substance to the Administrative Agent. Such additional term loans shall be subject to the terms of this Agreement and each of the other Loan Documents and, to the extent not specified or inconsistent with the terms and conditions set forth herein or therein, the terms and conditions applicable to each Incremental Term Loan as set forth in the Incremental Term Loan Amendment. From and after the Incremental Term Loan Closing Date for any Incremental Term Loans, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent be “Term Loans” for all purposes of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansDocuments.
(d) Notwithstanding This Section 2.20 shall supersede any provisions in Section 10.1 which would otherwise subject the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Amendment to the extent applicable, by each consent of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRequired Lenders.
Appears in 3 contracts
Samples: Credit Agreement (Sba Communications Corp), Revolving Refinancing Amendment (Sba Communications Corp), 2018 Refinancing Amendment (Sba Communications Corp)
Incremental Term Loans. (a) The Borrower shall have the right from time Subject to time during the term of this Agreement, and subject to upon the terms and conditions set forth in this Section 2.172.14 and the other provisions set forth herein, each Lender with an Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees, at any time and from time to time on and after the date that such Incremental Term Loan Commitment is obtained pursuant to Section 2.14 and prior to the Incremental Commitment Termination Date for such Tranche of Incremental Term Loans, to request in writing incremental make a term loan or term loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more the Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Borrower for such Incremental Term Loans as an attachment thereto; provided thatTranche, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested which Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event shall be incurred on the applicable Incremental Term Loan Borrowing Date for such Tranche of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent shall be denominated in the Applicable Currency for a Borrowing set forth in Section 4.02 have been satisfiedsuch Tranche of Incremental Term Loans;
(iii) shall, if Dollar Loans, at the Borrower shall have provided option of the applicable Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that all Incremental Term Loans that are Dollar Loans comprising the Administrative Agent shall have received copies same Borrowing under such Tranche shall, unless otherwise specifically provided herein, be of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agentsame Type;
(iv) shall, if Canadian Loans, at the Administrative Agent shall have received customary legal opinionsoption of the applicable Incremental Term Loan Borrower, resolutions be incurred and closing certificates maintained as, and/or converted into, CDOR Rate Loans or Canadian Prime Rate Loans, provided that all Incremental Term Loans that are Canadian Loans comprising the same Borrowing under such Tranche shall, unless otherwise specifically provided herein, be of the same Type;
(v) shall, if an Alternate Currency Incremental Term Loan denominated in a Primary Alternate Currency, be incurred and other documentation as it shall reasonably request, maintained in each case one or more Borrowings of Euro Rate Loans denominated in form and substance reasonably satisfactory to the Administrative Agentsuch Primary Alternate Currency under such Tranche; and
(vvi) to the extent requested by shall not exceed for any such Incremental Term Loan Lender making an at the time of any incurrence thereof, that aggregate principal amount which equals the Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loan Commitment of such Incremental Term Lenders evidencing Loan Lender for such Tranche at such time (before giving effect to any reduction thereof at such time pursuant to Section 4.03(b)). Once repaid, Incremental Term LoansLoans incurred hereunder may not be reborrowed.
Appears in 3 contracts
Samples: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time prior to the earlier of (A) the Maturity Date and (B) the time the Term Loan is repaid in this Section 2.17full, to request in writing incremental term loans (the “Incremental Term Loans”) be made incur additional Indebtedness under this Credit Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice in the form of an increase to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan”)) by an aggregate amount of up to $5,250,000. The following terms and conditions shall apply to the Incremental Term Loan: (i) the Incremental Term Loan shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) the Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loans, (iii) any such Incremental Term Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds; provided that any such non-no existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an participate in or fund any Incremental Term Lender and Loan, (iv) any Lender or financial institution approached to provide an such the Incremental Term Loan may elect or declineshall be in a minimum principal amount of $2,500,000, in its sole discretion, to provide such Incremental Term Loan.
(cv) The Borrower and each Incremental Term Lender that has agreed to provide an the proceeds of any the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide will be used for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing purposes set forth in Section 4.02 have been satisfied;
3.11, (iiivi) the Borrower shall have provided execute a Term Note in favor of any new Lender or any existing Lender requesting a Term Note who provides a portion of the Incremental Term Loan Cash Collateral as required pursuant Loan, (vii) the conditions to Extensions of Credit in Section 6.10 hereof and 4.2 shall have been satisfied, (viii) the Administrative Agent shall have received copies an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Collateral Documents or any amendments thereto that Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent, (ix) the Administrative Agent shall deem reasonably necessary, signed, to have received from the extent applicable, by each of the parties thereto (or, in the case of any party as to which Borrower updated financial projections and an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party)officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , demonstrating that, after giving effect to any such Incremental Term Loan on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.9. The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation to join this Credit Agreement as it shall reasonably request, in each case in form and substance reasonably satisfactory to Lenders hereunder for the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor portion of such Incremental Term Lenders evidencing Loan not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Term LoansLoan therein.
Appears in 3 contracts
Samples: Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc)
Incremental Term Loans. (a) The Borrower shall have At any time, the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $350,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrowers may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Acquisition not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(C) the Administrative Agent and the Lenders shall have received from the Borrowers a Pro Forma Compliance Certificate demonstrating that the Credit Parties will be in compliance on a pro forma basis with the financial covenants set forth in Section 6.1 after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loans pursuant thereto and (3) any Consolidated Company Investment consummated in connection therewith; provided that if such Incremental Term Loans are incurred in connection with a Consolidated Company Investment or an irrevocable redemption or repayment of Indebtedness, compliance with the financial covenants set forth in Section 6.1 may be determined, at the option of the Parent, at the time of signing the request applicable acquisition agreement or at the time date of the making irrevocable notice of the proposed redemption or repayment, as applicable (in which case, such Incremental Term Loans;
Loans will be deemed outstanding for purposes of calculating the maximum amount of Indebtedness that can be incurred under any leverage-based test hereunder); provided further, that if the Parent has made such election, in connection with the calculation of any financial ratio (ii) all conditions precedent for a Borrowing other than the financial covenants set forth in Section 4.02 6.1) on or following such date and prior to the earlier of the date on which such Consolidated Company Investment is consummated or the definitive agreement for such Consolidated Company Investment is terminated or such redemption or repayment is made, as applicable, any such ratio shall be calculated on a Pro Forma Basis assuming such Consolidated Company Investment, redemption or repayment and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been satisfiedconsummated, except to the extent such calculation would result in a lower leverage ratio than would apply if such calculation was made without giving pro forma effect to such Consolidated Company Investment, redemption, repayment, other pro forma events and Indebtedness;
(iiiD) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrowers and shall be guaranteed with the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each other Extensions of the parties thereto Credit on a pari passu basis;
(or, F) in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Loan (the terms of which shall be set forth in the relevant Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Joinder Agreement):
Appears in 3 contracts
Samples: Credit Agreement (MEADWESTVACO Corp), Credit Agreement (Rock-Tenn CO), Credit Agreement (WestRock Co)
Incremental Term Loans. (a) The Borrower shall have Company may by written notice to Administrative Agent at any time following the right from time to time during the term of this AgreementClosing Date, and subject to the terms and conditions set forth in this Section 2.17, elect to request in writing incremental the establishment of one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”), by an amount not in excess of $15,000,000 in the aggregate. After such notice, Company may retain a syndication agent (the “Syndication Agent”) be made under this Agreement by Incremental Term Lenders pursuant reasonably satisfactory to one or more Incremental Requisite Lenders, for the purposes of arranging and syndicating the New Term Loan AgreementsCommitments. Such notice to Company shall notify the Administrative Syndication Agent of the date (each, an “Increased Amount Date”) on which Company proposes that the New Term Loan Commitments shall set forth be effective, which shall be a date not less than 10 Business Days after the date on which such Incremental notice is delivered to Syndication Agent. Syndication Agent shall use its reasonable efforts to deliver to Company as soon as practicable a notice containing the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Term Loans are requested Loan Lender”) to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date whom Syndication Agent proposes any portion of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall Commitments be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent allocated and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery amounts of an Incremental Term Loan Agreementsuch allocations; provided, furtherthat Syndication Agent shall invite each Lender to participate in some portion of such New Term Loan Commitments, and that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
effective, as of such Increased Amount Date; provided, that (i) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of the making of the proposed Incremental after giving effect to such New Term Loans;
Loan Commitments, as applicable; (ii) all conditions precedent for a Borrowing the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Company, Syndication Agent, Administrative Agent and the New Term Loan Lenders, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 4.02 have been satisfied;
2.20(c); (iii) the Borrower all such New Term Loan Commitments and/or New Term Loans shall have provided Incremental been designated as “Third Lien Obligations” pursuant to and as defined in the Term Loan Cash Collateral as required pursuant Intercreditor Agreement; and (iv) Company shall deliver or cause to Section 6.10 hereof be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of such Series shall make a Loan to Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(c) Administrative Agent shall have received copies notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof, the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, subject to the assignments contemplated by this Section.
(d) The terms and provisions of the Collateral Documents New Term Loans of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Third Lien Term Loans. In any amendments thereto event the applicable New Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the Third Lien Term Loans, and the rate of interest applicable to the New Term Loans of each Series shall be determined by Company and the applicable New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Administrative Agent shall deem reasonably necessary, signed, interest rate applicable to the extent applicableNew Term Loans shall not be greater than the highest interest rate that may, by each under any circumstances, be payable with respect to Third Lien Term Loans plus 0.50% per annum unless the interest rate with respect to the Third Lien Term Loans is increased so as to equal the interest rate applicable to the New Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Credit Documents as may be necessary or appropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Syndication Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , to effect the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provision of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.24.
Appears in 2 contracts
Samples: Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.)
Incremental Term Loans. (ai) The In addition to Term Loans to be made pursuant to Section 2.1(b) hereof, the Borrower shall have the right from may at any time to time during the term of this Agreement, and subject prior to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such Maturity Date, by delivering written notice to the Administrative Agent shall set forth Agent, request that the date on which such Incremental Term Loans are requested Lenders (or other financial institutions (the “New Lenders”) agreed to be made (which shall not be less than three (3) Business Days nor more than 60 days after by the date of such notice (which time periods may be modified or waived at the discretion of Borrower and reasonably acceptable to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent in respect thereof not to be unreasonably withheld) commit to make Incremental Term Loans in an aggregate principal amount of not less than $10,000,000 and not more than $50,000,000. The Borrower may request Incremental Term Loans at any time and from time to time, conditioned subject to the conditions and provisions set forth herein. In the event that one or delayed)more of the Lenders (or New Lenders) offer, but no consent in their sole discretion, to enter into such commitments, and such Lenders (or New Lenders) and the Borrower agree as to the amount of any Lender such commitments that shall be allocated to the respective Lenders (other than any Lender providing or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders (or New Lenders) shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan pursuant Commitments. The Administrative Agent’s agreement to arrange and syndicate any such request) is required Incremental Term Loan Commitments shall not be deemed to constitute a commitment, or an offer, to provide, such Incremental Term Loan Commitments or a representation, direct or implied, that such arrangement and syndication will be obtainedsuccessful. No Lender shall have any obligation to commit to any Incremental Term Loan Commitments and the Borrower shall have no obligation to request Incremental Term Loan Commitments.
(bii) Any If the Borrower makes a request for Incremental Term Loan Commitments and the Administrative Agent is able to successfully obtain such Incremental Term Loans shall be madeLoan Commitments and reach agreement with the Borrower and Incremental Term Lenders as described in clause (i) above, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender Loan Lenders shall execute and deliver an agreement (the “Incremental Term Loan Agreement”) setting forth the terms and conditions of the Incremental Term Loans, and the Incremental Term Lenders shall become obligated to make Incremental Term Loans under this Agreement by execution and delivery in an amount equal to the amount of an their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement; provided, further, provided that no Lender shall be required to become an (v) the final maturity of the Incremental Term Lender and any Lender or financial institution approached to provide an Loans (such date, the “Incremental Term Loan may elect or declineMaturity Date”) shall be the Term Loan Maturity Date, (w) without the prior consent of the Required Lenders, in its sole discretion, to provide such no event shall the Applicable Margin for the Incremental Term Loan.
Loans be more than 0.25% greater than the respective Applicable Margin for Term Loans set forth in the definition of “Applicable Margin”, (cx) The Borrower and each the weighted average life to maturity of the Incremental Term Lender that has agreed Loans shall approximately equal the weighted average life to provide an Incremental maturity of the then outstanding Term Loan pursuant to such request Loans, (y) the Credit Parties shall execute and deliver be in compliance with Section 7.9 as of the last day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as prior to the Administrative Agent shall reasonably specify to provide for date of the requested proposed incurrence of any Incremental Term Loans.
(d) Notwithstanding , after giving effect, on a pro forma basis, to the foregoing, no Incremental Term Loan Agreement shall become effective and no incurrence of the Incremental Term Loans shall proposed to be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at incurred and the time application of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) proceeds thereof, and the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant delivered to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution a certificate of a counterpart thereof by Financial Officer showing such party), calculations in each case in form reasonable detail to demonstrate such compliance and substance reasonably satisfactory to the Administrative Agent;
(ivz) the Administrative Agent shall have received customary legal opinionsa certificate, resolutions dated the effective date of the Incremental Term Loan Agreement and closing certificates and other documentation as it shall reasonably requestsigned by the President, in each case in form and substance reasonably satisfactory a Vice President or a Financial Officer of the Borrower, certifying that the obligations of the Credit Parties with respect to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes Loans described in favor of such Incremental Term Lenders evidencing Loan Agreement are permitted to be incurred and secured by the assets of the Credit Parties as “Senior Indebtedness” under the Senior Subordinated Note Indenture and the indenture pursuant to which the Holding Company Notes have been issued and demonstrating in reasonable detail the basis for such certification. Except as otherwise provided herein, the Incremental Term LoansLoans shall have the interest rate, amortization schedule and maturity date as shall be set forth in the Incremental Term Loan Agreement. The Incremental Term Loans shall be secured by the Collateral, shall represent the obligations of the Borrower, shall be guaranteed by the Guarantors and shall be pari passu with the other Loans as to any Collateral and ranking of claims. Each of the Incremental Term Lenders hereby authorizes the Administrative Agent to revise Schedule 2.1 on the effective date of the Incremental Term Loan Agreement to reflect such new commitments without an amendment to this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Affinity Group Inc), Credit Agreement (Affinity Group Holding, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during the term of this Agreementtime, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under in accordance with this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedSection 2.18.
(b) Any such Each tranche of Incremental Term Loans shall be madein an aggregate principal amount of not less than $25,000,000 (provided that such amount may be less if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, at the option aggregate amount of the Borrower, by all Incremental Term Loans shall not exceed an amount equal to (x) $200,000,000 minus (y) the aggregate amount of commitment increases made pursuant to Section 2.20 of the ABL Facility. In addition, (i) each tranche of the Incremental Term Loans shall rank pari passu in right of payment and have the equal benefit of Guarantees and Collateral with the Term Loans, (ii) such tranche of the Incremental Term Loans shall not have a final maturity date earlier than the Maturity Date and its Weighted Average Life to Maturity shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) at the time of and immediately after giving effect to the incurrence of such Incremental Term Loans, no Event of Default shall have occurred and be continuing, (iv) the representations and warranties of each Credit Party set forth in the Financing Documents shall be true and correct in all material respects on the date of incurrence of such Incremental Term Loans (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of the date of such Borrowing of Incremental Term Loans, (v) at the time of incurrence of any Incremental Term Loan and immediately after giving effect thereto, (A) the Borrower shall be in compliance with the financial covenants set forth in Article 6 hereof on a Pro Forma Basis and (B) the Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 2.50:1.00 on a Pro Forma Basis, (vi) the interest rate margins and, subject to clause (B) in the proviso, the amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the lenders of such Incremental Term Loans and (vii) except as set forth in clauses (ii) and (vi) above, to the extent the terms and conditions applicable to any tranche of Incremental Term Loans are inconsistent from those of the Term Loans, such differences shall be reasonably satisfactory to the Administrative Agent and set forth in the applicable Incremental Amendment; provided that, (A) in the event that the interest rate margins applicable to any Incremental Term Loans are more than 50 basis points greater than the then Applicable Rate for the Term Loans, the then Applicable Rate for the Term Loans shall be increased to the extent necessary so that the interest rate margins for the Incremental Term Loans are no more than 50 basis points greater than the then Applicable Rate for the Term Loans (provided that in determining the Applicable Rate applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans or lenders of the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four (4)-year life to maturity), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their affiliates) in connection with the Term Loans or to one or more existing Lenders and/or arrangers (yor their affiliates) one or more financial institutions that of the Incremental Term Loans shall be excluded and (z) if the LIBO Rate floor applicable to the Incremental Term Loans is higher than the LIBO Rate floor applicable to the Term Loans, the amount of such difference shall be deemed to be an increase to the Applicable Rate for the Incremental Term Loans for the purposes of determining compliance with this clause (A); and (B) the amortization schedule applicable to any tranche of Incremental Term Loans shall be determined by the Borrower and the lenders thereof, in each case so long as the Weighted Average Life to Maturity for any tranche of Incremental Term Loans shall not an be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans. Each notice from the Borrower pursuant to this Section 2.18(b) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) Incremental Term Loans may be made, by any existing Lender (and each existing Term Lender shall have the right, but not an obligation, to make a portion of any such Lender or financial institution referred to Incremental Term Loan, on terms permitted in this Section 2.17(b2.18 and otherwise on terms reasonably acceptable to the Administrative Agent) being called or by any other bank or other financial institution (any such other bank or other financial institution, an “Incremental Term Additional Lender”); provided that any the Administrative Agent shall have consented (not to be unreasonably withheld) to such non-existing Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.04(b) for an assignment of Loans as applicable, to such Lender or financial institution Additional Lender.
(Ad) must be an Eligible Assignee, (B) must have an Commitments in respect of Incremental Term Loan Loans shall become Term Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment,” and the date of at least $5,000,000 unless otherwise agreed effectiveness of such Incremental Amendment, an “Incremental Facility Closing Date”) to this Agreement and, as appropriate, the other Facility Documents, executed by the Borrower, each Lender agreeing to provide such Term Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to this Agreement and the other Facility Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18. The Borrower and (C) must become an may use the proceeds of the Incremental Term Lender under Loans for any purpose not prohibited by this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(ce) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request This Section 2.18 shall execute and deliver supersede any provisions in Section 2.15 or 10.02 to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loanscontrary.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Kindred Healthcare, Inc), Term Loan Credit Agreement (Kindred Healthcare, Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, Administrative Agent elect to request the establishment of one or more additional Classes of Term Loans denominated in writing incremental term loans Dollars under this Agreement (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements). Such Each such notice to the Administrative Agent shall set forth specify the date (each, an “Incremental Effective Date”) on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at Borrower proposes that the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) before and after giving effect to the borrowing of such Incremental Term Loans on the Incremental Effective Date no Default shall have occurred and be continuing;
(ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B-1 Loans outstanding at the option time of such borrowing;
(iii) all other terms applicable to such Incremental Term Loans (other than provisions relating to original issue discount, upfront fees and interest rates, amortization (other than the Maturity Date and subject to clause (ii) above), optional prepayments or redemption terms, in each case, which shall be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Term Loans subject to the proviso contained in the definition of Applicable Margin), to the extent not consistent with or to the extent materially more onerous taken as a whole, than those terms applicable to the then outstanding Term B-1 Loans except to the extent such covenants and other terms apply solely to any period after the latest Maturity Date of any Class of Term Loans outstanding on the Incremental Effective Date immediately prior to the borrowing of such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(iv) the aggregate principal amount of Incremental Term Loans (other than Refinancing Term Loans) borrowed following the Closing Date, when aggregated with the principal amount of Qualifying Secured Debt issued pursuant to clause (w)(ii) of the Borrowerdefinition of “Permitted Indebtedness,” would not exceed the Maximum Incremental Amount;
(v) on a Pro Forma Basis, by (x) one the Borrower would be in compliance with each of the Financial Performance Covenants for the most recently ended Fiscal Quarter for which financial statements have been or more existing Lenders and/or are then required to have been delivered and (y) one the Consolidated Secured Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been or more financial institutions are then required to have been delivered would be less than or equal to 3.00 to 1.0; and
(vi) the Loan Parties and the Collateral Agent shall enter into such amendments to the Security Documents as may be reasonably requested by the Collateral Agent (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement) in order to ensure that is not an existing Lender the Incremental Term Loans are provided with the benefit of the applicable Security Documents and shall deliver such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Collateral Agent.
(b) The Borrower may approach any such Lender or financial institution referred any other Person that would be an Eligible Assignee to in this Section 2.17(b) being called an provide all or a portion of the Incremental Term Loans (a “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Refinancing Effective Date shall be designated a series (a “Series”) of Incremental Term Loans for all purposes of this Agreement; provided that, subject to the limitations set forth in clause (a) above, any Incremental Term Loans may, to the extent provided in the applicable Incremental Term Loan Amendment, be designated as an increase in any previously established Class of Term Loans.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under established pursuant to an amendment to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Agreement among the time of Borrower, the request or at Administrative Agent and the time of the making of the proposed Incremental Term Loans;
Lenders providing such Incremental Term Loans (iian “Incremental Term Loan Amendment”) all conditions precedent for a Borrowing which shall be consistent with the provisions set forth in Section 4.02 have been satisfied;
clause (iiia) above (but which shall not require the Borrower shall have consent of any other Lender other than those consents provided pursuant this Agreement). Each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Amendment shall be binding on the Lenders, the Loan Parties and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the other parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanshereto.
Appears in 2 contracts
Samples: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.), Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, all of which must be either existing Lenders or Eligible Assignees. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the remaining average life to maturity of the Term Loans and (iii) if the All-in Yield applicable to such Other Term Loans (as determined by the Administrative Agent, which determination shall be conclusive absent manifest error) exceeds the sum of (x) the margin then in effect for Eurodollar Term Loans (which shall be the sum of the Applicable Margin then in effect for Eurodollar Term Loans increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to the clause (a) of the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (y) one-fourth of the amount of the OID paid in respect of the 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 Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. Any Incremental Term Loans and Other Term Loans shall have the benefit of the same guarantees of the Guarantors under the Guarantee and Collateral Agreement as the Term Loans, and the Collateral shall secure any such Incremental Term Loans and Other Term Loans on a pari passu basis with the Credit Facilities. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.22 unless (i) the definitive documentation in respect of such Incremental Term Loan Commitment, to the extent not consistent with the Loan Documents, is reasonably satisfactory to the Administrative Agent, (ii) on the date of such effectiveness, (x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects, both before and after giving effect to such Incremental Term Loan Commitment, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and except for representations and warranties qualified by materiality, in which case such representations and warranties shall be accurate in all respects, (y) at the time of and immediately following the effectiveness of such Incremental Term Loan Commitment, no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
have occurred and be continuing and (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiz) the Borrower shall have provided received all approvals, consents, exemptions and authorizations from any Governmental Authority (including, without limitation, HPUC and DCCA) necessary or required in connection with the incurrence of such Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment and the contemplated borrowings in respect thereof and, in each case, the Administrative Agent shall have received copies a certificate to such effect dated such date and executed by a Financial Officer of the Collateral Documents Borrower, (iii) all fees, costs and expenses required to be paid by any Loan Party under any Loan Document or any amendments thereto that under the Administrative Agent shall deem reasonably necessary, signed, definitive documentation relating to such Incremental Term Loan Commitment on or prior to the extent applicable, by each effectiveness of the parties thereto (or, in the case of any party as to which an executed counterpart such Incremental Term Loan Commitment shall not have been receivedpaid prior to or substantially concurrently with the incurrence of such Incremental Term Loan Commitments, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the covenants set forth in Sections 6.11 and 6.12 would be satisfied on a pro forma basis (calculated assuming, without duplication, that such Incremental Term Loan Commitments have been fully utilized and giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions which occurred after the beginning of the relevant period and prior to or simultaneously with the incurrence of such Incremental Term Loan Commitments), (v) the Leverage Ratio, on a pro forma basis (calculated assuming, without duplication, that such Incremental Term Loan Commitments have been fully utilized and giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions which occurred after the beginning of the relevant period and prior to or simultaneously with the incurrence of such Incremental Term Loan Commitments), shall not be greater than (1) until financial statements for the first fiscal quarter ending after the Closing Date are delivered pursuant to Section 5.04(b), 3.00:1.00 and thereafter (2) 0.25:1.00 less than the then applicable covenant level set forth in Section 6.12, and (vi) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received customary (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.01.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
Appears in 2 contracts
Samples: Credit Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may, from time to time during after the term of this AgreementRestatement Effective Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”); provided that (i) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to both at the Administrative Agent shall set forth time of any such request and at the date on which time that any such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist have occurred and be continuing or result therefrom, (ii) the aggregate amount of such Incremental Term Loans, taken together with all Incremental Term Loans previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $500,000,000, (iii) the final stated maturity date of such tranche of Incremental Term Loans shall not be earlier than the Maturity Date in effect at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor incurrence of such Incremental Term Loans, (iv) such tranche of Incremental Term Loans shall rank pari passu in right of payment with the Revolving Loans, (v) such Incremental Term Loans shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (vi) the terms, conditions and documentation governing such Incremental Term Loans (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders evidencing or Additional TL Lenders (as defined below) providing such Incremental Term Loans, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans).
(b) Each notice from the Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17request Incremental Term Loan Commitments (each such increase, to request in writing incremental term loans (the an “Incremental Term LoansLoan Commitment”) be made under this Agreement by in an aggregate amount for all such Incremental Term Lenders pursuant Loan Commitments not to exceed the Incremental Facility Amount, from one or more Incremental Term Lenders, all of which must be Eligible Assignees, provided that each Lender shall have the right, but not the obligation, to provide its pro rata share of each series of Incremental Term Loan AgreementsCommitments or Incremental Term Loans. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the amount remaining under the Incremental Facility Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less earlier than three (3) 5 Business Days nor more than 60 days after (or such later date as may be acceptable to the Administrative Agent) from the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)notice) and include (iii) in the applicable completed case of Incremental Term Loan Agreement for Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Loans as an attachment thereto; provided that(“Additional Term Loans”) or commitments to make term loans with terms different from the Loans (“Other Term Loans” and, notwithstanding anything to together with Additional Term Loans, the contrary contained herein or in “Incremental Term Loans”).
(b) Each Person that provides any Incremental Term Loan AgreementCommitments (other than a Person that is a Lender, such Incremental Term Loans an Affiliate of a Lender or a Related Fund of a Lender) shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of be approved by the Administrative Agent shall be required (such consent approval not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an ) prior to such Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Commitments becoming effective; provided that in no event will any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an required to provide any Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) Commitments. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of such Person and the Borrower shall deliver such customary opinions and certificates and other documentation as shall be reasonably requested by the Administrative Agent in connection with the establishment of such Incremental Term Loan Commitment. The terms and provisions of the Incremental Term Loans shall be identical to those of the Loans except with respect to the Other Term Loans, to the extent reasonably satisfactory to the Required Lenders, as otherwise set forth herein or in the Incremental Assumption Agreement. The Incremental Term Loans shall rank pari passu in right of payment and security with the Loans. Without the prior written consent of the Administrative Agent and the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date and (ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.19 unless (i) no Default or Event on the date of Default effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
be satisfied, (ii) all conditions precedent for a Borrowing set forth except as otherwise specified in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided applicable Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and Assumption Agreement, the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem legal opinions, board resolutions and other closing certificates reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iii) all fees and expenses owing in respect of telegraphicsuch Incremental Term Loan Commitment to the Administrative Agent and the Lenders shall have been paid in full and (iv) to the extent not consistent with this Agreement, telecopy, electronic communication or the other written confirmation from such party terms and documentation in respect of execution of a counterpart thereof by such party), in each case in form and substance the Other Term Loans shall otherwise be reasonably satisfactory to the Administrative Agent;Required Lenders.
(ivd) Incremental Term Loans may be made on a delayed draw basis pursuant to procedures and documentation agreed to by the Borrower, the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRequired Lenders.
Appears in 2 contracts
Samples: First Lien Term Loan Agreement, First Lien Term Loan Agreement
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, the Borrower may, from time to request in writing incremental term loans time after the earlier to occur of (x) the “Incremental Term Loans”termination of all DDTL Commitments and (y) be made under this Agreement the DDTL Commitment Expiration Date, by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent (each, an “Incremental Facility Request”), request to add one or more additional tranches of incremental term loan facilities and/or increase the principal amount of the Loans of any existing Class (each, an “Incremental Term Loan Commitment” and the term loans thereunder, an “Incremental Term Loan”; each Incremental Term Loan Commitment is sometimes referred to herein individually as an “Incremental Facility” and collectively as the “Incremental Facilities”); provided, that the Aggregate Incremental Amount shall not exceed the Incremental Cap. Any Incremental Term Loan Commitment may be provided by, subject to Section 2.08(c)(v), (A) any existing Lender or any Affiliate of any Lender and/or (B) any other Person other than any natural person, any Loan Party or to any Affiliate of any Loan Party, or any Person that is a Disqualified Institution (any such Person that provides an Incremental Term Loan Commitment in accordance with this Section 2.08, including, without limitation, clause (c)(v) hereof, an “Incremental Term Loan Lender”). No Lender shall be obligated to provide any Incremental Facility, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender. Such Incremental Facility Request shall set forth (i) the amount of the Incremental Term Loan Commitment being requested, (ii) the date (an “Incremental Effective Date”) on which such Incremental Term Loans are Facility is requested to be made become effective (which which, unless otherwise agreed by Administrative Agent, shall not be less than three ten (310) Business Days nor more than 60 sixty (60) days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayednotice), but no consent of any Lender and (other than any Lender providing an Incremental Term Loan pursuant to such requestiii) is required to be obtainedthe Borrower’s proposed potential lenders thereof.
(b) Any such Each Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower Facility and each Incremental Term Lender that has agreed Loan Lender’s obligation to provide an fund the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Loans thereunder shall become effective and no as of the Incremental Effective Date of such Incremental Facility so long as, after giving effect to such Incremental Facility, the Incremental Term Loans shall to be provided under this Section 2.17 unlessmade thereunder (assuming that the entire amount of such Incremental Facility is funded), and the application of the proceeds therefrom:
(i) subject to Section 1.12, no Default or Event of Default shall exist at immediately prior to or after giving effect to such Incremental Facility and the time funding of the request or at the time of the making of the proposed Incremental Term LoansLoans thereunder;
(ii) all conditions precedent for a Borrowing subject to Section 1.12, the representations and warranties of the Loan Parties set forth in Section 4.02 this Loan Agreement and each other Loan Document, shall be true and correct in all material respects on and as of the Incremental Effective Date (except to the extent that any such representation or warranty is expressly stated to have been satisfiedmade as of an earlier date, in which case, such representation or warranty shall be true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(iii) the Borrower subject to Section 1.12, no event, change or condition shall have provided Incremental Term Loan Cash Collateral as required pursuant occurred since December 31, 2019 that has had or could reasonably be expected to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative AgentMaterial Adverse Effect;
(iv) subject to Section 1.12, as of the last day of the most recently completed Test Period, the Total Net Leverage Ratio recomputed on a pro forma basis for such Incremental Term Loans shall not exceed 3.50:1.00;
(v) the proceeds of such Incremental Term Loan shall be used in accordance with Section 8.12;
(vi) on the Incremental Effective Date of such Incremental Facility, after giving effect thereto, Hayfin Lenders collectively hold not less than 50.1% of the aggregate outstanding principal amount of the Loans (including such Incremental Term Loan (which, for purposes of this clause (vi), shall be deemed fully funded on such Incremental Effective Date); and
(vii) the Administrative Agent shall have received received:
(A) the Incremental Facility Request that sets forth the requested amount and proposed terms of the requested Incremental Facility and the Incremental Effective Date;
(B) a certificate of a Responsible Officer certifying as to the foregoing clauses (i), (ii), (iii), (iv) and (v);
(C) a Solvency Certificate substantially in the form of Exhibit G duly executed by the chief financial officer of the Borrower confirming the Solvency of the Borrower and of each of the other Loan Parties and their Subsidiaries, taken as a whole, after giving effect to Borrowing of such Incremental Term Loans and the application of the proceeds thereof;
(D) legal opinions with respect to customary legal opinionsmatters, resolutions board resolutions, Notes (to the extent requested by the applicable Incremental Term Loan Lenders) and other customary closing certificates and other documentation as it shall reasonably requestrequested by the Administrative Agent, in each case in form consistent with those delivered on the Closing Date;
(E) guaranty and substance Lien reaffirmations as may be reasonably satisfactory to be requested by the Administrative Collateral Agent; and
(vF) from each proposed Incremental Term Loan Lender that is not (immediately prior to the extent requested by any effectiveness of the Incremental Facility) a Lender, an Administrative Questionnaire and such other documents, information and forms (including, without limitation, tax forms) as the Administrative Agent may request from such proposed Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
Appears in 2 contracts
Samples: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Incremental Term Loans. (a) The US Borrower shall have the right from time to time during the term of this Agreementmay at any time, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion promptly deliver a copy to each of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedLenders), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) request one or more existing Lenders and/or additional tranches of term loans (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called each, an “Incremental Term LenderLoan”); provided provided, that (i) at the time that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent is made (and the Borrower and after giving effect thereto), (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iA) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
have occurred and be continuing, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiB) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedTotal Leverage Ratio on a Pro Forma Basis (including, to the extent applicableany Permitted Acquisition or Subsidiary Redesignation has occurred during the applicable Test Period, by each giving effect to such Permitted Acquisition and/or Subsidiary Redesignation on a Pro Forma Basis) after giving effect to the incurrence of the parties thereto (orIncremental Term Loans and the application of the proceeds therefrom, in as of the case last day of any party as to which an executed counterpart the most recently ended four fiscal quarters of the US Borrower, shall not have been receivedexceed 4.25 to 1.00, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivC) the Administrative Agent US Borrower shall have received customary legal opinionsbe in compliance, resolutions and closing certificates and other documentation as it shall reasonably requeston a Pro Forma Basis (including, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term LoanPermitted Acquisition or Subsidiary Redesignation has occurred during the applicable Test Period, giving effect to such Permitted Acquisition and/or Subsidiary Redesignation on a Pro Forma Basis) after giving effect to the Borrower shall have executed and delivered Incremental Term Notes in favor incurrence of such Incremental Term Loans and the application of the proceeds therefrom, with Section 7.09 and Section 7.10 of this Agreement computed as if such Indebtedness had been outstanding during the most recently ended period of four consecutive fiscal quarters of the US Borrower, (D) the incurrence of any such Incremental Term Loans has been duly authorized by the US Borrower and (E) the US Borrower has delivered to the Administrative Agent a certificate to the effect set forth in clauses (A), (B), (C) and (D) above, together with all relevant calculations related thereto; and (ii) the US Borrower shall promptly after the US Borrower receives the proceeds from the incurrence of any Incremental Term Loans, pay Dividends to Holdings (and, at the option of the US Borrower, related transaction costs) with such proceeds and Holdings shall promptly thereafter utilize the proceeds of such Dividends to redeem, repurchase or repay Holdings Notes or Permitted Holdings Refinancing Indebtedness in accordance with Section 7.12(a)(iv). The Incremental Term Loans (a) shall be in an aggregate principal amount not in excess of $325,000,000 (less the aggregate principal amount of Additional Senior Subordinated Notes issued pursuant to Section 7.04(o)), (b) shall rank pari passu in right of payment, security and guarantees with the Revolving Loans and the Term Loans, (c) shall not mature earlier than the Term Loan Maturity Date (but may, subject to clause (d) below, have amortization prior to such date), (d) shall not have a weighted average life that is shorter than that of the then-remaining Term Loans, (e) shall accrue interest at a rate determined at the time the commitments to provide such Incremental Term Loans are obtained (it being understood that the Incremental Term Loans may be priced differently from the Term Loans) and (f) shall, except as set forth above, have terms identical to and be treated the same as the Term Loans for all purposes of the Credit Documents (including with respect to mandatory and voluntary prepayments), provided that if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders evidencing providing such Incremental Term Loan) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed not to include any upfront or similar fees or original issue discount payable to the Lenders of Term Loans) relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Term Loan Amendment by more than 0.50%, then the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. In lieu of requesting an additional tranche of term loans, the US Borrower may, in such notice, request that the Incremental Term Loans constitute additional Term Loans which shall have terms identical to the existing Term Loans. Such notice shall set forth (1) the requested amount of Incremental Term Loans, together with all relevant calculations confirming compliance with sub-clause (i) of the fourth preceding sentence, and (2) the proposed terms of the Incremental Term Loans (or, if applicable, that the US Borrower wishes that the Incremental Term Loans constitute additional Term Loans which shall have terms identical to the existing Term Loans).
(b) The US Borrower may arrange for one or more banks, financial institutions or other Persons (including existing Lenders) reasonably acceptable to the Administrative Agent (any such bank, financial institution or other Person being called an “Additional Lender”) to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. All commitments in respect of Incremental Term Loans (the “Incremental Term Loan Commitments”) shall become Commitments under this Agreement, and all Additional Lenders that are not already Lenders shall become Lenders under this Agreement, pursuant to an amendment (the “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by Holdings, the Borrowers and, as appropriate, each other Credit Party, each Additional Lender and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of the Incremental Term Loan Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in
Section 4.01 (it being understood that all references to “the time of each such Credit Event” and “the date of such Credit Event” in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Term Loan Amendment) and such other conditions as the parties thereto shall agree. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.
Appears in 2 contracts
Samples: Credit Agreement (Compass Minerals International Inc), Credit Agreement (Compass Minerals International Inc)
Incremental Term Loans. (a) The Borrower shall have and any one or more Lenders (including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrower, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms and conditions set forth Administrative Agent (each such Lender, an “Incremental Term Loan Lender”), may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to in its sole discretion), that such Incremental Term Loan Lenders shall make one or more additional term loan credit facilities available to the Borrower under this Section 2.172.1.1(b) (each an “Incremental Term Loan Facility” and collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to or Incremental Term Loan Commitment shall be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrower, the Administrative Agent shall set forth Agent, and the date on which Incremental Term Loan Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which shall not be less than three (3i) Business Days nor more than 60 days after the date aggregate principal amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed all Incremental Term Loan Agreement Commitments shall not exceed the Maximum Incremental Amount; (ii) the Stated Maturity Date of any Incremental Term Loan shall be on or after the Stated Maturity Date for the Term A-1 Loans, determined as of the initial funding date for such Incremental Term Loans as an attachment theretoLoans; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed would reasonably be expected to result after giving Pro Forma Effect to any Incremental Term Loans;
Loan; (iiiv) all conditions precedent for the Borrower shall deliver a Borrowing Compliance Certificate to the Administrative Agent evidencing compliance with the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4 after giving Pro Forma Effect to any Incremental Term Loan; (iiiv) the proceeds of any Incremental Term Loan shall be used solely for the purposes described in Section 4.10; (vi) to the extent Section 4.10 permits any proceeds of any Incremental Term Loan to be used to acquire any additional Real Property, each of the conditions set forth in Sections 5.2.1, 5.2.2, and 5.3 shall be fulfilled to the satisfaction of the Administrative Agent; (vii) the weighted average life of any Incremental Term Loan shall be equal to or greater than the remaining weighted average life of the Term A-1 Loans, determined as of the initial funding date for such Incremental Term Loan; (viii) to the extent that the applicable interest rate margin on any Incremental Term Loan exceeds by more than 0.25% the applicable interest rate margin for the Term A-3 Loans, determined as of the initial funding date for such Incremental Term Loan, (A) the applicable interest rate margin for the Term A-3 Loans shall be increased so that the applicable interest rate margin for such Incremental Term Loan does not exceed the applicable interest rate margin for the Term A-3 Loans by more than 0.25% and (B) the applicable interest rate margin for each of the other credit facilities existing on such date shall be increased by the same amount of basis points as the Term A-3 Loans are so increased, if any; (ix) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; (x) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans; and (xi) the Borrower shall have provided Incremental Term Loan Cash Collateral delivered any modifications or additional Real Property Documents as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, requested in its sole discretion pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Samples: Term a 4 Loan Credit Facility (CatchMark Timber Trust, Inc.), Credit Agreement (CatchMark Timber Trust, Inc.)
Incremental Term Loans. (ai) The Subject to the terms and conditions set forth herein, the Borrower shall have the right right, at any time and from time to time during from the Closing Date until the Incremental Term Loan Commitment Termination Date, to request term loans (“Incremental Term Loans”) in up to three (3) Borrowings (individually, an “Incremental Term Loan Borrowing” and collectively, the “Incremental Term Loan Borrowings”), each in a minimum amount of this Agreement$50,000,000 and integral multiples of $1,000,000 in excess thereof (provided, however, that if the aggregate amount of the prior Incremental Term Loan Borrowings exceeds $100,000,000, then the final Incremental Term Loan Borrowing may be made in an amount equal to the remaining amount of the unused Incremental Term Loan Commitment Amount). The following additional terms and conditions shall apply to any Incremental Term Loan Borrowing: (i) any such borrowing shall be obtained from existing Lenders or from other banks or other financial institutions, in each case in accordance with the terms set forth below and in Section 5.2(a) hereof, (ii) any such borrowing shall amortize in accordance with the amortization schedule set forth in Section 3.1(h)(ii) hereof and the interest rate thereon shall be determined in accordance with Section 5.2(b) hereof, and (iii) Schedule II shall be amended by the Administrative Agent (without the consent or approval of the Required Lenders) to include the applicable Incremental Term Loan Commitments and the Incremental Term Loan Lenders.
(ii) The amount of any Incremental Term Loan Borrowing hereunder shall be offered first to the existing Lenders, and in the event the additional commitments which existing Lenders are willing to take shall exceed the amount requested by the Borrower, such excess shall be allocated at the discretion of the Administrative Agent and the Borrower. If the amount of the Incremental Term Loan Borrowings requested by the Borrower shall exceed the additional commitments which the existing Lenders are willing to take, then the Borrower and the Administrative Agent may invite other banks and financial institutions reasonably acceptable to the Borrower and the Administrative Agent to join this Agreement as Lenders hereunder for the portion of commitments not taken by existing Lenders, provided that such other banks and financial institutions shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. Each Lender may determine in its sole discretion whether to take any such requested additional commitments for Incremental Term Loans.
(iii) On and after the date that the Incremental Term Loan Lenders have issued their Incremental Term Loan Commitments for an Incremental Term Loan Borrowing, subject to the terms and conditions set forth in this Section 2.17Agreement, from time to request in writing incremental term loans time on any Business Day occurring thereafter but prior to the earlier of (x) thirty (30) days following the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more date on which all of the related Incremental Term Loan AgreementsCommitments have been received by the Borrower and (y) the Incremental Term Loan Commitment Termination Date, each Incremental Term Loan Lender will make Incremental Term Loans to the Borrower equal to such Incremental Term Loan Lender’s Percentage of the aggregate amount of the Incremental Term Loan Borrowing requested by the Borrower to be made on such day. Such notice No amounts paid or prepaid with respect to Incremental Term Loans may be reborrowed. Each request for an Incremental Term Loan Borrowing shall be delivered to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall or before 1:00 p.m., Charlotte time, on a Business Day, not be less than three (3) one Business Days nor more than 60 days after the date of such Day’s notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall Base Rate Loans, or three Business Days’ notice in the case of LIBO Rate Loans, and in either case not have been receivedmore than five Business Days’ notice, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory prior to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any date of borrowing. Incremental Term Lender making Loans which are Base Rate Loans shall be made in a minimum amount of $2,000,000 and an integral multiple of $1,000,000 and Incremental Term Loan, the Borrower Loans which are LIBO Rate Loans shall have executed be made in a minimum amount of $3,000,000 and delivered Incremental Term Notes in favor an integral multiple of such Incremental Term Lenders evidencing such Incremental Term Loans$1,000,000.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Titan Corp)
Incremental Term Loans. (a) The Borrower shall have may, upon five (5) Business Days’ notice to the right Administrative Agent, request a commitment for an additional term loan from time to time during the term of this AgreementLenders or by adding one or more lenders, and determined by the Borrower in its sole discretion, subject to the terms consent of the Administrative Agent (such consent not to be unreasonably withheld), which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” and conditions set forth in this Section 2.17such commitment, to request in writing incremental term loans (the an “Incremental Term LoansLoan Commitment”); provided, however, that (i) be made under this Agreement by Incremental Term Lenders pursuant to one or more the Borrower may not request an Incremental Term Loan AgreementsCommitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Term Loan, (ii) each Incremental Term Loan Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof and (iii) the aggregate amount of all Incremental Term Loan Commitments shall not exceed $1,250,000,000. Such notice to the Administrative Agent shall set forth describe the amount and intended disbursement date on which of the Incremental Term Loan to be made pursuant to such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Loan Commitments. An Incremental Term Loan Commitment shall become effective upon (a) the execution by each applicable New Lender of a counterpart of this Agreement for and delivering such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything counterpart to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (Cb) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution a certificate of a counterpart thereof by such party)responsible officer of the Borrower, in each case in form and substance reasonably satisfactory to dated as of the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of date such Incremental Term Lenders evidencing Loan Commitments are proposed to take effect, certifying that as of such date each of the representations and warranties in Article 4 hereof are true and correct in all material respects, except for those representations and warranties that are qualified by materiality or Materially Adverse Effect, which shall be true and correct, and no Default then exists. Over the term of the Agreement the Borrower may request Incremental Term Loans.Loan Commitments no more than four (4)
Appears in 2 contracts
Samples: Term Loan Agreement (American Tower Corp /Ma/), Term Loan Agreement (American Tower Corp /Ma/)
Incremental Term Loans. (a) “The Borrower shall have the right may from time to time during (but no more than three times) after the term Third Amendment Effective Date request one or more new tranches of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under to repurchase Senior Subordinated Notes pursuant to the Note Repurchase; provided, however, that the aggregate amount of all Incremental Term Loans shall not exceed an amount equal to 101% of the aggregate principal amount of the Senior Subordinated Notes repurchased pursuant to the Note Repurchase plus accrued and unpaid interest on such repurchased Senior Subordinated Notes. Nothing in this Agreement by shall be construed to obligate the Administrative Agent, the Arranger or any Lender to negotiate for, solicit to or provide any Incremental Term Lenders pursuant to one or more Loans. Each Incremental Term Loan Agreements. Such notice to shall become effective on a date agreed by the Borrower and the Administrative Agent shall set forth the date on which such (each, an “Incremental Term Loans are requested to be made (Credit Extension Date”), which shall not be less than three (3) Business Days nor more than 60 days in any case on or after the date of such notice (which time periods may be modified or waived at the discretion satisfaction of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or conditions precedent set forth in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeSection 3.2. In connection with any such request, the consent of the The Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at notify the option of Lenders and the Borrower, by (x) one on or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “before 1:00 p.m., New York City time, on the date following a Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan Credit Extension Date of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery effectiveness of an Incremental Term Loan Agreement; provided, further, that no Lender and shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, record in its sole discretion, to provide the Register all applicable additional information in respect of such Incremental Term Loan.
(c) Loans. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at not have a final maturity earlier than the time of the request or at the time of the making of the proposed Incremental Term Loans;
Loan D Maturity Date, (ii) all conditions precedent for not have a Borrowing set forth in Section 4.02 have been satisfied;
weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loan D Loans, (iii) have an applicable margin that is not more than the Borrower shall have provided Incremental Applicable Margin on the Term Loan Cash Collateral as required pursuant D Loans (after giving effect to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, increase in the case of any party as to which an executed counterpart shall not have been received, receipt by Applicable Margin for the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyTerm Loan D Loans), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) share with the Administrative Agent shall have received customary legal opinionsTerm Loan D Loans, resolutions and closing certificates and other documentation as it shall reasonably requeston a pro rata basis, in each case in form and substance reasonably satisfactory to any mandatory or optional prepayments made by the Administrative Agent; and
Borrower, (v) to have the extent requested same guarantees as, and be secured on a pari passu basis by any Incremental Term Lender making an Incremental Term Loanthe same Collateral securing, the Borrower shall Term Loan D Loans and (vi) have executed the same terms and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansconditions as the other Loans (except for any differences permitted hereby).”
Appears in 2 contracts
Samples: Credit Agreement (CBD Media LLC), Credit Agreement (CBD Media Holdings LLC)
Incremental Term Loans. (a) The Each Incremental Term Loan Amendment Lender hereby agrees, severally and not jointly, to make an Incremental Term Loan to the Borrower shall have at the right from time Incremental Term Loan Amendment Effective Time in an aggregate principal amount equal to time during the term of this amount set forth opposite such Incremental Term Loan Amendment Lender’s name on Schedule I attached hereto, on the terms set forth herein and in the Amended Credit Agreement, and subject to the conditions set forth below. The Incremental Term Loans shall be deemed to be “Term Loans” as defined in the Amended Credit Agreement for all purposes of the Credit Agreement and the other Loan Documents having terms and conditions provisions identical to those applicable to the Term Loans outstanding on the date hereof immediately prior to the Incremental Term Loan Amendment Effective Time except as otherwise set forth in this Section 2.17, to request in writing incremental term loans Amendment (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentincluding Annex A hereto)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madeUnless previously terminated, at the option commitments of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of Amendment Lenders pursuant to Section 2(a) shall terminate at least $5,000,000 unless otherwise agreed to by 6:00 p.m., New York City time, on the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanAmendment Effective Date.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Each Incremental Term Loan pursuant Amendment Lender: (i) confirms that a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement therein and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective documents and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation information as it shall reasonably request, in each case in form has deemed appropriate to make its own credit analysis and substance reasonably satisfactory decision to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making enter into this Amendment and make an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of has been made available to such Incremental Term Lenders evidencing Loan Amendment Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any of Credit Suisse Securities (USA) LLC, Xxxxxxx Xxxxx Lending Partners LLC or Jefferies Finance LLC, in their capacities as joint lead arrangers and joint bookrunners with respect to this Amendment or any other debt financing transactions forming part of the Transactions (collectively, the “Arrangers”), or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other Loan Documents, including this Amendment; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Incremental Term Loan Amendment Effective Time such Incremental Term LoansLoan Amendment Lender shall be a “Lender” and an “Additional Term Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender and an Additional Term Lender thereunder.
Appears in 2 contracts
Samples: Incremental Term Loan Amendment (Constant Contact, Inc.), Incremental Term Loan Amendment (Endurance International Group Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have may by written notice to the right from time Agent, up to time four (4) times during the term of this Agreement, and subject elect to the terms and conditions set forth in this Section 2.17, to request in writing incremental establish one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”) be to increase the aggregate amount of all Commitments made under this Agreement by Incremental Term Lenders pursuant to one or not more Incremental than $400,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the New Term Loan Agreements. Such notice to the Administrative Agent Commitments shall set forth be effective, which shall be a date not less than 5 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made the Agent, (which shall not be less than three (3B) Business Days nor more than 60 days after the date amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as Commitments, which must be at least $15,000,000, and (C) the identity of each Lender or other Person that is an attachment thereto; provided thatEligible Assignee (each, notwithstanding anything to the contrary contained herein or in any Incremental a “New Term Loan Agreement, Lender”) to whom such Incremental New Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent Loan Commitments shall be required (allocated and the amounts of such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)allocations; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that, both before and after giving effect to such request shall execute and deliver to the Administrative Agent an Incremental New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
Commitments (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i1) no Default or Event of Default shall exist at the time of the request on such Increase Amount Date before or at the time of after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of the proposed Incremental any New Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 have 5.2 shall be satisfied; (3) the Borrower and the Parent shall be in pro forma compliance with the covenants set forth in Section 9.1 as of the last day of the most recently ended fiscal quarter for which a Compliance Certificate has been satisfied;
delivered after giving effect to such New Term Loan Commitments; (iii4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall have provided Incremental deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. On any Increased Amount Date on which any New Term Loan Cash Collateral as required pursuant Commitments of any Series are effective, subject to Section 6.10 hereof the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Administrative New Term Loans made pursuant thereto. The Agent shall have received copies notify Lenders promptly upon receipt of the Collateral Documents or any amendments thereto Borrower’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments shall be identical to the existing Term Loans except that the Administrative Agent shall deem reasonably necessary, signed, upfront fees applicable to the extent applicableNew Term Loans shall be determined solely by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, by each without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Loan Documents as may be necessary or appropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor to effect the provision of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.9.
Appears in 2 contracts
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) hereunder, in an aggregate amount for all such New Term Loan Commitments not in excess of the greater of (a) $50.0 million and (b) an unlimited amount, so long as in the case of this clause (b), after giving effect to such New Term Loans, the Consolidated Net Total Secured Leverage Ratio on a pro forma basis (but without netting the cash proceeds of such New Term Loans for purposes of determining the Consolidated Net Total Secured Leverage Ratio) shall set forth be equal to or less than 3.00 to 1.00, plus, in each case, in the case of New Term Loans that serve to effectively extend the maturity of any then outstanding Term Loans, an amount equal to the portion of such then outstanding Term Loans to be replaced with such New Term Loans. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that the New Term Loan Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of Agent unless the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)otherwise agrees; provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of any New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental New Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unless:
that (i1) no Default or Event of Default shall exist at the time of the request or at the time of would exist after giving effect thereto and Holdings shall be in pro forma compliance with Section 7.1 on such Increased Amount Date after giving effect to such New Term Loan Commitments and to the making of any Tranche of New Term Loans pursuant thereto and after giving effect to any Permitted Acquisition, Investment permitted by Section 7.7 or redemption, repurchase, defeasance, repayment or refinancing of Indebtedness consummated in accordance therewith (but without netting the proposed Incremental cash proceeds of such New Term Loans;
Loans for purposes of determining the Consolidated Net Total Leverage Ratio) (ii) all provided that to the extent the proceeds of such New Term Loans will be used to consummate a Permitted Acquisition or Investment permitted by Section 7.7, the conditions precedent for a Borrowing set forth in clause (1) above shall only be required to be satisfied on the date on which definitive agreements with respect to such Permitted Acquisition or Investment permitted by Section 4.02 have been satisfied;
7.7 are entered into, assuming that such New Term Loan Commitments are established, and the Loans thereunder made, on such date, the proceeds thereof are applied on such date and such Permitted Acquisition or Investment permitted by Section 7.7 closes on such date); (iii2) the Borrower shall have provided Incremental interest rate margins applicable to any New Term Loan Cash Collateral as required pursuant to Section 6.10 hereof will be determined by the Borrowers and the Administrative Lenders providing such New Term Loan and such interest rate margins (which shall be deemed to include original issue discount (based on a four (4) year average life to maturity or, if less, the remaining life to maturity) and upfront fees, but exclude arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers or the Documentation Agent shall have received copies of (or their respective affiliates) in their capacities as such in connection with the Collateral Documents existing Initial Term Facility or to one or more arrangers (or its affiliates) in their capacities as such applicable to the New Term Loans or New Term Loan Commitments or any amendments thereto other or other fees payable in connection with the existing Initial Term Facility or the New Term Loans or New Term Loan Commitments that are not paid generally to Lenders providing the Administrative Agent shall deem reasonably necessary, signed, existing Initial Term Loan Facility or such New Term Loans) will not be more than 0.50% higher than the interest margins applicable to the extent applicableexisting Initial Term Facility, unless the interest rate margins with respect to the existing Initial Term Facility are increased by each of an amount equal to the parties thereto (ordifference between the interest rate margins with respect to the New Term Loans and the corresponding interest rate margins on the existing Initial Term Facility, minus 0.50%, provided, that if the lowest permissible Eurodollar Rate is greater than 1.00% for such New Term Loans, the difference between such “floor” and 1.00%, in the case of the Eurodollar Rate for such New Term Loans, shall be equated to interest rate margin for purposes of this clause (3) and to the extent the provisions of this clause (3) would require the interest rate margins applicable to the existing Initial Term Loans to be increased, such increase shall first be applied to the “floors” in respect of the existing Initial Term Loans; (4) the proceeds of any party as to which an executed counterpart New Term Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions and Investments permitted by Section 7.7); (5) the New Term Loans shall rank pari passu in right of payment and of Collateral with the existing Initial Term Loans; (6) in the case of any New Term Loans, the maturity date thereof shall not have been received, receipt by be earlier than the Administrative Agent Term Maturity Date applicable to Initial Term Loans and the Weighted Average Life to Maturity shall be equal to or greater than the Weighted Average Life to Maturity of telegraphic, telecopy, electronic communication or other written confirmation the Initial Term Loans that are not New Term Loans; (7) all terms and documentation with respect to any New Term Loans which differ from such party of execution of a counterpart thereof by such party), in each case in form and substance those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent;
, except as set forth in clauses (iv3) and (6) above; (8) such New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Administrative Agent and one or more New Term Lenders; and (9) the Borrowers shall have received deliver or cause to be delivered any customary legal opinionsopinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Initial Term Loans, resolutions as applicable, outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments become effective, subject to the foregoing terms and closing certificates conditions, each lender with a New Term Loan Commitment (each, a “New Term Lender”) shall become a Lender hereunder with respect to such New Term Loan Commitment. The terms and provisions of the New Term Loan Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any New Term Loans or New Term Loan Commitments shall be deemed to be Term Loans and Term Loan Commitments. Each Joinder Agreement may, without the consent of any other documentation Lenders, effect such amendments to this Agreement and the other Loan Documents as it shall reasonably requestmay be necessary or appropriate, in each case in form and substance reasonably satisfactory to the reasonable opinion of the Administrative Agent; and
(v) Agent and the Borrowers, to effect the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provisions of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.25.
Appears in 2 contracts
Samples: Credit Agreement (Vince Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this AgreementParent may, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent Agent, request the establishment of Incremental Term Commitments, provided that the aggregate amount of Incremental Term Commitments established on any date shall not exceed the Incremental Amount on such date. Each such notice shall set forth (i) the amount of the requested Incremental Term Commitments (which, subject to the foregoing proviso, shall be at least US$50,000,000 unless otherwise agreed by the Administrative Agent) and (ii) the date on which such Incremental Term Loans Commitments are requested to be made effective (which shall be a Business Day not be less than three (3) 10 Business Days nor (or such shorter period as may be agreed to by the Administrative Agent) or more than 60 30 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentnotice)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything . Any Lender approached to the contrary contained herein or in provide any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower Commitment, and each Incremental Term Lender any Person that has agreed Parent proposes to provide become an Incremental Term Loan pursuant to Lender, if such request shall execute Person is not then a Lender, must be an Eligible Assignee and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall must be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed); provided that no Person may provide any Incremental Term Commitment to the extent that, on the date of telegraphiceffectiveness thereof or the making of any Incremental Term Loans thereunder, telecopysuch Person and its Affiliates, electronic communication or other written confirmation from such party taken in the aggregate, would hold more than 25% of execution the sum of a counterpart thereof by such party)the total outstanding Revolving Credit Exposure, total unused Revolving Commitments, aggregate outstanding principal amount of Incremental Term Loans and total unused Incremental Term Commitments, in each case in form and substance reasonably satisfactory case, determined on such date immediately after giving effect to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor effectiveness of such Incremental Term Lenders evidencing Commitments (and, if applicable, any Commitment Increase or Commitment Decrease made on such Incremental Term Loansdate).
Appears in 2 contracts
Samples: Credit Agreement (TripAdvisor, Inc.), Credit Agreement (TripAdvisor, Inc.)
Incremental Term Loans. (a) The Borrower shall have may by written notice substantially in the right form set out in Exhibit H from time the Borrower to time during the Agent (each, an “Incremental Term Loan Notice”) elect to request an increase to the term loan commitments (each, an “Incremental Term Loan Commitment”); provided, the aggregate amount of all Incremental Term Loans shall not exceed the sum of (x) one hundred fifty million dollars ($150,000,000) and (y) the amount of any voluntary prepayments of Term A Loans and Term B Loans to the extent such voluntary prepayment reduces the aggregate outstanding principal amount of Term A Loans and Term B Loans and does not otherwise reduce any amounts that would otherwise be payable prior to maturity pursuant to any other provision of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans Agreement (the “Incremental Term LoansFacility Amount”) be made under this Agreement by Incremental Term Lenders pursuant to one or more ). The proceeds of any Incremental Term Loan Agreements. Such notice may be used by the Loan Parties for working capital and other general corporate purposes.
(b) Each Incremental Term Loan Notice shall specify (i) the amount of the Incremental Term Loan Commitment being requested (which shall be in a minimum amount of five million dollars ($5,000,000) or, if less, an amount equal to the Administrative Agent remaining Incremental Facility Amount), (ii) the date (each, an “Incremental Facility Effective Date”) on which the Borrower proposes that an Incremental Term Loan Commitment be effective, which shall set forth be a date (w) except for Incremental Term Loans provided by Petrichor Opportunities Fund I LP in an aggregate amount not to exceed $15,000,000, after the Term B Loans have been funded, (x) not later than 12 months after the Effective Date and (y) not less than five Business Days after the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything is delivered to the contrary contained herein or in any Incremental Term Loan AgreementAgent, such Incremental Term Loans shall mature on and (iii) the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent identity of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such each Lender or financial institution referred to in this Section 2.17(b) being called Eligible Assignee (each, an “Incremental Term Loan Lender”); provided that ) to whom the Borrower proposes any portion of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent Commitment be allocated and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery amounts of an Incremental Term Loan Agreementsuch allocations; provided, furthereach existing Lender, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an if any, from which the Borrower may request such Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan. Incremental Term Loans may not be provided by any Person other than a Lender or a Person that would constitute an Eligible Assignee.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Each Incremental Term Loan pursuant Commitment shall become effective as of the applicable Incremental Facility Effective Date; provided: (i) both before and immediately after giving effect to such request Incremental Term Loan, as of such Incremental Facility Effective Date, the representations and warranties contained herein and in the other Loan Documents shall execute be true and deliver correct in all material respects (except for those representations and warranties that are conditioned by materiality, which shall be true and correct in all respects) on and as of that Incremental Facility Effective Date to the Administrative Agent 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 (except for those representations and warranties that are conditioned by materiality, which shall have been true and correct in all respects) on and as of such earlier date; (ii) no Event of Default shall exist on such Incremental Facility Effective Date before or immediately after giving effect to such Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansLoan.
(d) Notwithstanding On or following any Incremental Facility Effective Date, subject to the foregoingsatisfaction of the foregoing terms and conditions, no (i) each Incremental Term Loan Lender shall become a party to this Agreement as an Incremental Term Loan Lender and Lender and shall make a loan(in accordance with any availability period set out in the applicable Incremental Term Loan Notice) to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto, and (iii) the applicable Incremental Term Loan Commitments shall become effective when the Agent countersigns the Incremental Term Loan Notice (which the Agent shall do promptly following receipt thereof).
(e) The Agent shall notify the Lenders, promptly upon receipt of the Borrower ’s notice of an Incremental Facility Effective Date, of the Incremental Term Loan Commitments and no the Incremental Term Loan Lenders.
(f) Except as set forth in clause (g) below, the terms of Incremental Term Loans shall be provided identical to the Term A Loans and Term B Loans (including the interest rate, margin, original issue discount, upfront fees, exit fees and call protection payable upon repayments or maturity, arrangement fees, structuring or other fees payable in connection therewith, regardless of whether such amounts are payable, directly or indirectly, to such Incremental Term Loan Lender, an Affiliate of such Incremental Term Loan Lender or otherwise) and pursuant to the same documentation applicable to the Term A Loans and Term B Loans. Warrants, equity and similar consideration (collectively, “Equity Consideration”) may be given in connection with Incremental Term Loans under this clause (f) solely to the extent (x) the number of shares of common stock represented by such Equity Consideration, together with any Equity Consideration issued under clause (g) below, do not exceed 0.50% of the fully diluted equity capitalization of the Parent in the aggregate and (y) they are on identical terms as the Warrants issued or to be issued pursuant to Section 2.17 unless:3.5(g) or more favorable terms to the issuer thereof (including, without limitation, pricing, amount, strike price and anti-dilution protections); provided that such warrants may have a different strike price so long as that strike price proportionately corresponds to a fully-diluted valuation of not less than $3.6 billion.
(ig) no Default or Event of Default shall exist at If the time of Borrower would be in compliance with the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing financial covenant set forth in Section 4.02 have been satisfied;
7.18(b) (iii) the Borrower shall have provided whether or not then in effect and determined on a pro forma basis and assuming that all Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not Commitments have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyfunded), in each case in form then the terms and substance reasonably satisfactory to documentation need not be consistent with the Administrative Agent;
then existing Term A Loans and Term B Loans; provided, (iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent requested by that any such terms and conditions are more restrictive on the Parent and its Subsidiaries in any way (including, any financial covenant, fulfillment covenant, or otherwise) such terms and conditions shall also be added for the benefit of the Term A Loans and Term B Loans, (ii) that amortization shall be identical to the Term A Loans and Term B Loans and mandatory prepayments of Incremental Term Loans shall be identical to, or more favorable to the Borrower than, the Term A Loans and Term B Loans, (iii) that the pricing, interest rate margins, discounts, premiums, rate floors, fees, and applicable to any Incremental Term Lender making an Loans shall be determined by the Borrower and the Incremental Term Loan, Loan Lenders; provided that if the Borrower shall have executed and delivered All-In Yield applicable to any Incremental Term Notes in favor Loan exceeds the corresponding All-In Yield applicable to the Term A Loans and Term B Loans then the Cash Interest Rate with respect to Term A Loans and Term B Loans shall automatically be increased by the amount of such excess, effective upon the making of such Incremental Term Lenders evidencing such Loans, (iv) neither Parent or any subsidiary of Parent shall be an obligor (other than the Borrower and Guarantors), (v) Incremental Term Loans shall not be secured by a lien on any assets other than the Collateral, (vi) the maturity date of Incremental Term Loans shall be no earlier than the Maturity Date and (vii) Equity Consideration may be given in connection with Incremental Term Loans under this clause (g) solely to the extent (x) the number of shares of common stock represented by such Equity Consideration, together with any Equity Consideration issued under clause (f) above, do not exceed 0.50% of the fully diluted equity capitalization of the Parent in the aggregate and (y) they are on identical terms as the Warrants issued or to be issued pursuant to Section 3.5(f) or more favorable terms to the issuer thereof (including, without limitation, pricing, amount, strike price and anti-dilution protections); provided that such warrants may have a different strike price so long as that strike price proportionately corresponds to a fully-diluted valuation of not less than $3.6 billion. Incremental Term Loans shall share ratably in any prepayment of the Term A Loans and Term B Loans.
(h) Each of the parties hereto hereby agrees that upon each applicable Incremental Facility Effective Date, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the applicable Incremental Term Loan Commitment and the Incremental Term Loans to be made pursuant thereto.
Appears in 2 contracts
Samples: Loan and Security Agreement (LumiraDx LTD), Loan and Security Agreement (LumiraDx LTD)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term LoansLoans may be made by any existing Lender (an “Existing TL Lender”) be made under this Agreement or by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which any Eligible Assignee (any such Eligible Assignee providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after at such time being called an “Additional TL Lender” and, together with the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for Existing TL Lenders providing such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, at such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requesttime, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“TL Lenders”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such . Incremental Term Loans shall be mademade pursuant to an amendment, at the option of the Borrower, by restatement or amendment and restatement (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan Amendment”); provided that ) of this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each TL Lender and the Administrative Agent, in each case without the consent of any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an other Person. The Incremental Term Loan Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an hereby agrees to enter into such Incremental Term Loan Agreement; provided, further, that no Lender shall be required Amendments. The Lenders hereby irrevocably authorize the Administrative Agent to become an Incremental Term Lender and any Lender or financial institution approached to provide an enter into such Incremental Term Loan may elect or declineAmendments. The effectiveness of any Incremental Term Loan Amendment shall be subject to (x) the satisfaction of the conditions as the parties thereto shall agree, in its sole discretion, to provide provided that no such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Amendment shall execute and deliver modify or waive any condition to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no incurrence of Incremental Term Loans shall be provided under this except in accordance with Section 2.17 unless:
9.2 hereof and (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiy) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory documents consistent with those delivered on the Restatement Effective Date pursuant to Section 4.1(e) as to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions corporate power and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, authority of the Borrower shall have executed and delivered Incremental Term Notes in favor of to borrow hereunder after giving effect to such Incremental Term Lenders evidencing such Loan Amendment. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Term Loans, at any time.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may at any time and from time to time during after the term of this Agreement, and Closing Date (subject to the terms and conditions set forth in this Section 2.17of the Commitment Letter), by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to that (i) the contrary contained herein or in any Incremental Term Loan Agreement, proceeds of such Incremental Term Loans shall mature be applied to repay or redeem secured debt, secured lease obligations or preferred securities of any Project Subsidiary (x) set forth on Schedule 2.27 annexed hereto in an aggregate amount (including such amounts so applied pursuant to clause (i)(x) of the first proviso to Section 2.33 of the Existing DIP Agreement) not to exceed $1,100,000,000 during the term of this Agreement (the “Schedule Limit”) or (y) other than in accordance with the preceding clause (x), in an aggregate amount not to exceed $2,000,000,000, minus the aggregate proceeds applied to repayments or redemptions under the preceding clause (x), so long as the Collateral Requirements are satisfied, (ii) at the time that any such Incremental Term Loan is made (immediately after giving effect thereto), no Default or Event of Default shall have occurred and be continuing, (iii) the Borrower shall be in compliance with the covenants set forth in Section 6.17 determined on a pro forma basis as of the date of such Incremental Term Loan and the last day of the most recent fiscal period of the Borrower for which financial statements have been provided, in each case, as if such Incremental Term Loans had been outstanding on the Maturity Datelast day of such fiscal quarter of the Borrower for testing compliance therewith and after giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions after the beginning of the relevant fiscal quarter but prior to or simultaneous with the borrowing of such Incremental Term Loan, (iv) all fees and expenses owing in respect of such increase to the Agents and the Lenders shall have been paid, (v) if the Applicable Margin with respect to such Incremental Term Loans shall be higher than the Applicable Margin then in effect for the First Priority Term Loans plus 0.50%, such Applicable Margin with respect to the First Priority Term Loans shall be automatically adjusted to be equal to the relevant Applicable Margin relating to such Incremental Term Loans; provided that this clause (v) shall not be applicable with respect to any incurrence of Incremental Term Loans the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit during the term of this Agreement, (vi) S&P and Xxxxx’x shall have reaffirmed (with no negative outlook) the ratings then in effect for the Facilities, after taking into account the incurrence of such Incremental Term Loans; provided that no such rating affirmation shall be required with respect to any incurrence of Incremental Term Loans (x) the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit or (y) the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities (I) set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit or (II) other than in accordance with the preceding clause (I) unless such Incremental Term Loans would cause the aggregate amount of Incremental Term Loans incurred pursuant to this Section 2.27 and described in this clause (y)(II) (or incurred pursuant to Section 2.33 of the Existing DIP Agreement and described in clause (y)(II) of the third proviso of Section 2.33(a) of the Existing DIP Agreement) to exceed $500,000,000 or any integral multiple of $500,000,000 or would cause the aggregate amount of Incremental Term Loans incurred pursuant to this Section 2.27 (or incurred pursuant to Section 2.33 of the Existing DIP Agreement) to equal $2,000,000,000 and (vii) the other terms and conditions in respect of such Incremental Term Loans (other than pricing and amortization), to the extent not consistent with the Facilities, shall otherwise be reasonably satisfactory to the Administrative Agent. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not require less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in paragraph (c) below). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the First Priority Term Loans, (b) shall mature concurrently with the First Priority Term Loans and (c) for purposes of repayments shall be treated substantially the same as the First Priority Term Loans (including with respect to mandatory and voluntary prepayments and scheduled amortization). Each notice from the Borrower pursuant to this Section 2.27 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any mandatory prepayments thereof existing Lender (and shall each existing First Priority Term Lender will have the right, but not amortize. In connection with an obligation, to make a portion of any Incremental Term Loan or by any other bank or other financial institution (any such request, the consent of other bank or other financial institution being called a “New Lender”); provided that the Administrative Agent shall be required have consented (such consent not to be unreasonably withheld) to such Lender or New Lender making such Incremental Term Loans if such consent would be required under Section 9.6 for an assignment of First Priority Term Loans to such Lender or New Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Supplement”) substantially in the form of Exhibit I to this Agreement and, conditioned or delayed)as appropriate, but no the other Loan Documents, executed by the Borrower, the Guarantors, each Lender agreeing to provide such Commitment, if any, each New Lender, if any, and the Administrative Agent. An Incremental Commitment Supplement may, without the consent of any Lender (other than any Lender providing an Incremental Term Lenders, effect such amendments to this Agreement and the other Loan pursuant Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to such request) is required to be obtainedeffect the provision of this Section 2.27.
(b) Any such The effectiveness of any Incremental Term Loans permitted by this Section 2.27 shall be made, at subject to the option satisfaction of each of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any conditions set forth in Section 4.2 and such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by other conditions as the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender parties thereto shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanagree.
(c) The Borrower and each Notwithstanding anything to the contrary in this Section 2.27, (i) in no event shall the amount of the Incremental Term Loans permitted by this Section 2.27 exceed an amount equal to $2,000,000,000, less the aggregate principal amount of any Incremental Term Loans incurred by the Borrower prior to the Closing Date under the Existing DIP Agreement in effect during the pendency of the Cases and (ii) no Lender that has agreed shall have any obligation to provide make an Incremental Term Loan pursuant unless it agrees to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loansdo so in its sole discretion.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Incremental Term Loans. (ai) The Borrower shall have Subject to this Section 2.01(b) and the right from time to time during the term of this Agreement, and subject to the other terms and conditions set forth in this Section 2.17herein, each Lender with an Incremental Term Loan Commitment severally agrees to request in writing incremental make a term loan or term loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by to the Borrower in Dollars during the period from the Closing Date to the Maturity Date in an aggregate amount not to exceed such Lender’s Pro Rata Share of the Aggregate Incremental Term Lenders pursuant Loan Commitment, provided that (A) each such Incremental Term Loan shall be incurred on an Incremental Term Loan Borrowing Date and (B) the aggregate initial principal amount of all Incremental Term Loans made by any Lender shall not exceed such Lender’s Incremental Term Loan Commitment at the time of incurrence thereof. Amounts repaid on the Incremental Term Loans may not be reborrowed. Incremental Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(ii) So long as no Default or Event of Default then exists or would result therefrom, the Borrower shall, in consultation with the Administrative Agent, have the right to request on one or more occasions after the Closing Date and prior to the Maturity Date that the Lenders or, subject to the right of first refusal referred to in clause (B) below, other Persons qualifying as an Eligible Assignee, provide Incremental Term Loan Agreements. Such notice Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (A) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by the Borrower, until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent shall an Incremental Term Loan Commitment Agreement as provided in Section 2.01(b)(iii) and (y) the other conditions set forth in Section 2.01(b) shall have been satisfied, (B) the date on which Borrower shall first offer each Lender the right to provide such Incremental Term Loans are requested to be made Loan Commitments and each Lender shall have ten (which shall not be less than three (310) Business Days nor more than 60 days after from the date of such receipt of notice (which time periods may be modified or waived at by the discretion Administrative Agent of the Administrative Agent)) and include the applicable completed proposed terms of such Incremental Term Loan Agreement for to decide whether to provide an Incremental Term Loan Commitment (it being understood and agreed that the failure to respond within such 10 Business Day period shall be deemed an election by a Lender not to participate in such Incremental Term Loans Loan), (C) any Lender (or, after the 10 Business Day exercise period referenced above has lapsed, any other Person which will qualify as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Eligible Assignee) may so provide an Incremental Term Loan AgreementCommitment without the consent of any other Lender, such (D) each provision of Incremental Term Loan Commitments pursuant to this Section 2.01(b)(ii) for any Lender shall be in an amount of at least $5,000,000, (E) the sum of the aggregate unfunded Incremental Term Loan Commitments plus the aggregate Outstanding Amount of all Incremental Term Loans shall mature on not at any time exceed ONE HUNDRED MILLION DOLLARS ($100,000,000), (F) the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection Applicable Rate with respect to any such request, Incremental Term Loan and the consent of the Administrative Agent shall be required (such consent not fees payable to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (G) in no event shall the Maturity Date of such Incremental Term Loan be earlier than the Maturity Date of the Revolving Loans, (H) the scheduled principal payments with respect to such request) is required to be obtained.
(b) Any such the Incremental Term Loans shall be madeas set forth in the applicable Incremental Term Loan Commitment Agreement, provided that in no event shall the weighted average life to maturity of such Incremental Term Loan be less than the weighted average life to maturity of the Revolving Loans, (I) the applicable Incremental Term Loan shall only be permitted hereunder if (x) the Borrower shall have delivered a Pro Forma Compliance Certificate to the Administrative Agent demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b), and (y) no Default or Event of Default shall exist at the option time or would exist after giving effect to the incurrence of such Incremental Term Loan, and (J) all actions taken by the Borrower pursuant to this Section 2.01(b) shall be done in coordination with the Administrative Agent.
(iii) At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 2.01, the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such the Administrative Agent and each Lender or financial institution referred to in this Section 2.17(b) being called other Eligible Assignee (each an “Incremental Term Loan Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached which agrees to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Commitment shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement (appropriately completed), with the effectiveness of such Lender’s Incremental Term Loan Commitment to occur upon the date set forth in such Incremental Term Loan Commitment Agreement (and such other documentation as subject to any conditions set forth therein not in contravention of the terms hereof) following delivery thereof to the Administrative Agent and the payment of any fees required in connection therewith. The Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no promptly notify each Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event Lender as to the effectiveness of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided each Incremental Term Loan Cash Collateral as required pursuant Commitment Agreement, and at such time Schedule 2.01 shall be deemed modified to Section 6.10 hereof and reflect the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loan Commitments of such Incremental Term Lenders evidencing such Incremental Term LoansLenders.
Appears in 2 contracts
Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Incremental Term Loans. (a) The Borrower shall have Notwithstanding anything contained in the right from time Existing Financing Agreement, each Incremental Lender hereby agrees, severally and not jointly, to time during make an Incremental Term Loan to the term of this AgreementBorrowers on the Incremental Effective Date in an aggregate principal amount equal to the amount set forth opposite such Incremental Lender’s name on Annex I hereto (the “Incremental Term Loan Commitments”), on the terms set forth herein, and subject to the terms and conditions set forth in this Section 2.17, 5 below. The Incremental Term Loans shall be deemed to request in writing incremental term loans (the be “Incremental Term Loans”) ” as contemplated by Section 2.13 of the Financing Agreement and shall be deemed to be “Term Loans” for all purposes of the Financing Agreement and the other Loan Documents, and having terms and provisions identical to those applicable to, the Term Loans made under this Agreement by Incremental Term Lenders on the Effective Date pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion Section 2.01 of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoExisting Financing Agreement; provided that, notwithstanding anything to that the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on be subject to the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, payment of those fees described in the consent of the Administrative Agent shall be required Incremental Fee Letter (such consent not to be unreasonably withheld, conditioned or delayedas defined below), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Each Incremental Term Loans shall be made, at the option Lender hereby: (i) confirms that a copy of the BorrowerFinancing Agreement and the other applicable Loan Documents, by (x) one or more existing Lenders and/or (y) one or more together with copies of the financial institutions that is not an existing Lender (any such Lender or financial institution statements referred to in therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have Agreement and make an Incremental Term Loan of at least $5,000,000 unless otherwise agreed has been made available to such Incremental Lender by the Administrative Agent; (ii) agrees that it will, independently and without reliance upon the Agent or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Financing Agreement or the other applicable Loan Documents, including this Agreement; (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Financing Agreement and the Borrower other Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (Civ) must become an acknowledges and agrees that, upon the Incremental Term Lender under this Agreement by execution and delivery of an Effective Date, such Incremental Term Loan Agreement; provided, further, that no Lender shall be required a “Lender”, under, and for all purposes of, the Financing Agreement and the other Loan Documents, and shall be subject to become an Incremental Term and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanthereunder.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Commitments shall execute and deliver to automatically terminate upon the Administrative Agent an Incremental Term Loan Agreement and such other documentation as funding of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at on the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansEffective Date.
Appears in 2 contracts
Samples: Incremental Joinder and Amendment No. 1 (ITHAX Acquisition Corp.), Incremental Joinder and Amendment No. 1 (ITHAX Acquisition Corp.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, to request in writing incremental Agent increase the then-effective amount of the Initial Term Loans or establish a new tranche of term loans hereunder (the any such increase or new tranche, “Incremental Term Loans”) to repay or retire the 2017 Senior Convertible Notes (provided, up to $7,000,000 may be made under this Agreement by Incremental Term Lenders pursuant used in a single borrowing for working capital purposes or to one or more Incremental Term Loan Agreements. Such notice to fund a Permitted Acquisition); provided that:
(i) the Administrative Agent shall set forth the date on which such principal amount of Incremental Term Loans are requested established pursuant to be made (which this Section 2.16, shall not be less than three exceed $100,000,000 (3) Business Days nor more than 60 days such amount, after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such deducting any Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestborrowed hereunder, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Incremental Basket”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.;
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement such documents and instruments and take such other documentation actions as may be required by Agent in connection with such increases and at the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.time of any such proposed increase;
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at have occurred and be continuing or would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the time Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the request or at date of such increase or, to the time extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such earlier date;
(iv) (A) the Incremental Term Loans provided under this Section 2.16 shall have a maturity date no earlier than the Termination Date and (B) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life to maturity of the making of the proposed Incremental Initial Term Loans;
(v) Borrower shall be in pro forma compliance with a Net Leverage Ratio of not more than 6.50 to 1.00 calculated as of the most recently ended Fiscal Quarter for which financial statements have been delivered and as if such Incremental Term Loans had been established (and fully funded) as of the first day of the relevant period for testing compliance and
(vi) All other terms and conditions with respect to the Incremental Term Loans, except with respect to All-in Yield (which shall be subject to clause (d) below), be no more favorable to the Borrower than those applicable to the Initial Term Loans (including in respect of guarantees and collateral) or added for the benefit of the Initial Term Loans; provided, the addition of Loan Parties organized in jurisdictions other than the United States, Canada, England and the Netherlands shall be subject to approval of the Agent.
(b) No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Loans. Only the consent of the Lenders agreeing to provide Incremental Term Loans (each such lender being an “Additional Lender”) shall be required pursuant to this Section 2.16.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Incremental Term Loans requested by Borrower shall be effective upon delivery to Agent of each of the following documents (the date of such effectiveness, the “Incremental Effective Date”):
(i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to Agent;
(ii) all conditions precedent for a Borrowing set forth notice to the Additional Lenders, in Section 4.02 have been satisfiedform and substance reasonably acceptable to Agent, signed by a Responsible Officer of Borrower;
(iii) the a certificate of Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessarysigned by a Responsible Officer, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory acceptable to Agent, certifying that each of the Administrative Agent;conditions in subsection (a) of this Section 2.16 has been satisfied: and
(iv) the Administrative any other certificates or documents that Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and.
(vd) Anything to the extent requested contrary contained herein notwithstanding, the All-In Yield that is to be applicable to the Incremental Term Loans may be lower than, equal to or higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date; provided that if the All-In Yield that is to be applicable to the Incremental Term Loans is higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date by more than 0.50% (the amount by which the All-In Yield is higher than 0.50%, the “Excess”), then the interest margin applicable to the Initial Term Loans immediately prior to the Incremental Effective Date shall be increased by the amount of the Excess, subject to the occurrence of and effective upon the Incremental Effective Date and without the necessity of any action by any party hereto.
(e) [Reserved].
(f) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Loans made pursuant to the Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans pursuant to this Section 2.16.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Incremental Term Loans. The Borrower may on no more than two occasions during the period beginning on the Effective Date to and including the date that is six months prior to the Maturity Date, provided that no Qualified Acquisition Period is then in existence, enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Term Loans does not exceed $250,000,000. The Borrower may arrange for any such tranche to be provided by one or more Lenders or new banks, financial institutions or other entities (each, an “Incremental Term Loan Lender”); provided that (i) each Incremental Term Loan Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”) and (ii) no Lender shall be required to participate in any tranche of Incremental Term Loans. No consent of any Lender (other than the Lenders participating in any Incremental Term Loan) shall be required for any Incremental Term Loan pursuant to this Section 2.20. Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the Incremental Term Loan Lenders and the Administrative Agent shall notify each Lender thereof. Upon the effectiveness of any Accession Agreement to which any Incremental Term Loan Lender is a party, such Incremental Term Loan Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Term Loan Lender hereunder and subject to all obligations of a Term Loan Lender hereunder. Notwithstanding the foregoing, no tranche of Incremental Term Loans shall become effective under this Section unless, (i) on the proposed date of the effectiveness of such Incremental Term Loans, (A) the conditions set forth in paragraphs (a) The and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (B) the Borrower shall be in compliance on a pro forma basis (giving effect to the use of proceeds of such Incremental Term Loan) with the covenants contained in Section 6.12 and (ii) the Administrative Agent shall have received documents consistent with those delivered on the right from time Effective Date as to time during the term organizational power and authority of this Agreementthe Borrower to borrow such Incremental Term Loans. On the effective date of any Incremental Term Loans being made, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender shall make a loan to the Administrative Agent shall set forth Borrower in an amount equal to its pro rata portion of the date on which tranche of such Incremental Term Loans are requested to be made (which and such loan shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing constitute an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such for purposes hereof. The Incremental Term Loans shall be made, at Term Loans for all purposes hereunder and the option terms of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be identical to the Term Loans advanced on the Effective Date; provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at that the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing Loans shall amortize as set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans2.09.
Appears in 2 contracts
Samples: Credit Agreement (Service Corp International), Credit Agreement (Service Corp International)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, to request in writing incremental Agent increase the then-effective amount of the Initial Term Loans or establish a new tranche of term loans hereunder (the any such increase or new tranche, “Incremental Term Loans”); provided that:
(i) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such principal amount of Incremental Term Loans are requested established pursuant to be made (which this Section 2.16, shall not be less than three exceed $100,000,000 (3) Business Days nor more than 60 days such amount, after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such deducting any Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestborrowed hereunder, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Incremental Basket”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.;
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement such documents and instruments and take such other documentation actions as may be required by Agent in connection with such increases and at the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.time of any such proposed increase;
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at have occurred and be continuing or would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the time Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the request or at date of such increase or, to the time extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such earlier date;
(iv) (A) the Incremental Term Loans provided under this Section 2.16 shall have a maturity date no earlier than the Termination Date and (B) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life to maturity of the making of the proposed Incremental Initial Term Loans;
(v) Borrower shall be in pro forma compliance with a Net Leverage Ratio of not more than 6.50 to 1.00 calculated as of the most recently ended Fiscal Quarter for which financial statements have been delivered and as if such Incremental Term Loans had been established (and fully funded) as of the first day of the relevant period for testing compliance and
(vi) All other terms and conditions with respect to the Incremental Term Loans, except with respect to All-in Yield (which shall be subject to clause (d) below), be no more favorable to the Borrower than those applicable to the Initial Term Loans (including in respect of guarantees and collateral) or added for the benefit of the Initial Term Loans; provided, the addition of Loan Parties organized in jurisdictions other than the United States, Canada, England and the Netherlands shall be subject to approval of the Agent.
(b) No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Loans. Only the consent of the Lenders agreeing to provide Incremental Term Loans (each such lender being an “Additional Lender”) shall be required pursuant to this Section 2.16.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Incremental Term Loans requested by Borrower shall be effective upon delivery to Agent of each of the following documents (the date of such effectiveness, the “Incremental Effective Date”):
(i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to Agent;
(ii) all conditions precedent for a Borrowing set forth notice to the Additional Lenders, in Section 4.02 have been satisfiedform and substance reasonably acceptable to Agent, signed by a Responsible Officer of Borrower;
(iii) the a certificate of Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessarysigned by a Responsible Officer, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory acceptable to Agent, certifying that each of the Administrative Agent;conditions in subsection (a) of this Section 2.16 has been satisfied: and
(iv) the Administrative any other certificates or documents that Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and.
(vd) Anything to the extent requested contrary contained herein notwithstanding, the All-In Yield that is to be applicable to the Incremental Term Loans may be lower than, equal to or higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date; provided that if the All-In Yield that is to be applicable to the Incremental Term Loans is higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date by more than 0.50% (the amount by which the All-In Yield is higher than 0.50%, the “Excess”), then the interest margin applicable to the Initial Term Loans immediately prior to the Incremental Effective Date shall be increased by the amount of the Excess, subject to the occurrence of and effective upon the Incremental Effective Date and without the necessity of any action by any party hereto.
(e) [Reserved].
(f) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Loans made pursuant to the Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans pursuant to this Section 2.16.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time Subject to time during the term of this Agreement, and subject to upon the terms and conditions set forth in this Section 2.17herein, each Lender with an Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees to request in writing incremental make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by to Company, which Incremental Term Lenders Loans (i) shall be incurred pursuant to one or more a single drawing on the respective Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Funding Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent (ii) shall be required denominated in Dollars, (such consent not to be unreasonably withheldiii) except as hereinafter provided, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madeshall, at the option of the BorrowerCompany, by be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, and (xiv) one or more existing Lenders and/or (y) one or more financial institutions that is shall not an existing Lender (exceed for any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan Lender at any time of at least $5,000,000 unless otherwise agreed to by any incurrence thereof, the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Commitment of such Incremental Term Lenders evidencing Loan Lender for such Tranche on the respective Incremental Term LoansLoan Funding Date. Once repaid, Incremental Term Loans may not be reborrowed. The Incremental Term Loan Commitments under a given Tranche (and the Incremental Term Loan Commitment of each Lender in respect of such Tranche) shall terminate in its entirety on the Incremental Term Loan Funding Date for such Tranche of Incremental Term Loans (after giving effect to the incurrence of the Incremental Term Loans of such Tranche on such date).
Appears in 2 contracts
Samples: Credit Agreement (Alliance HealthCare Services, Inc), Credit Agreement (Alliance HealthCare Services, Inc)
Incremental Term Loans. At any time after the Closing Date, but not more than twice, the Company may request that the Aggregate Term Loan Commitment be increased from zero in order to accommodate an incremental single-draw installment of Term Loans (aeach, an “Incremental Term Loan”) The Borrower solely with the consent of each Lender participating in such Incremental Term Loan; provided, however, that without the prior written consent of each Lender, the aggregate initial principal amount of all Incremental Term Loans made pursuant to this Section 2.2(b), together with the aggregate amount of all increases in the Aggregate Revolving Loan Commitment pursuant to Section 2.5(c), shall not exceed $300,000,000. Each such request shall be in a minimum amount of at least $10,000,000 and increments of $5,000,000 in excess thereof. Each request shall be made in a written notice given to the Agent and the Term Loan Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Term Loan Commitment Increase Notice”) shall specify the amount of the proposed amount of the increase in the Aggregate Term Loan Commitment, the corresponding amount of the Incremental Term Loan and the proposed effective date therefor, which shall also be the proposed Borrowing Date for such Incremental Term Loan. In the event of such a Term Loan Commitment Increase Notice, each of the Term Loan Lenders shall be given the opportunity to participate in the requested Incremental Term Loan in proportion to their respective then current Term Loan Pro Rata Shares thereof. On or prior to the date that is fifteen (15) Business Days after receipt of the Term Loan Commitment Increase Notice, each Term Loan Lender shall submit to the Agent a notice indicating the maximum amount by which it is willing to assume an Incremental Term Loan Commitment in connection with such Term Loan Commitment Increase Notice (any such notice to the Agent being herein a “Term Loan Lender Increase Notice”). Any Term Loan Lender which does not submit a Term Loan Lender Increase Notice to the Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied an Incremental Term Loan Commitment. In the event that the Incremental Term Loan Commitments set forth in the Term Loan Lender Increase Notices exceed the amount requested by the Company in the Term Loan Commitment Increase Notice, the Agent and the Arrangers for the Term Loan Facility shall have the right from time to time during right, with the term consent of this Agreement, and subject to the terms and conditions set forth in this Section 2.17Company, to request in writing incremental term loans (allocate the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more amount of Incremental Term Loan AgreementsCommitments necessary to meet the Company’s Term Loan Commitment Increase Notice. Such notice to In the Administrative Agent shall set forth event that the date on which such Incremental Term Loans Loan Lender Increase Notices are less than the amount requested to be made (which shall by the Company, not be less later than three (3) Business Days nor more than 60 days after prior to the proposed effective date the Company may notify the Agent of any financial institution that shall have agreed to become a “Term Loan Lender” party hereto (a “Proposed New Term Loan Lender”) in connection with the Term Loan Commitment Increase Notice. Any Proposed New Term Loan Lender shall be subject to the consent of the Agent (which consent shall not be unreasonably withheld or delayed). If the Company shall not have arranged any Proposed New Term Loan Lender(s) to commit to the shortfall from the Term Loan Commitment Increase Notice, then the Company shall be deemed to have reduced the amount of its Term Loan Commitment Increase Notice to the aggregate amount set forth in the Term Loan Lender Increase Notices. Based upon the Term Loan Commitment Increase Notice, any allocations made in connection therewith and any notice regarding any Proposed New Term Loan Lender, if applicable, the Agent shall notify the Company and all of the Lenders (including the Revolving Lenders) on or before the Business Day immediately prior to the proposed effective date of such notice the amount of each Term Loan Lender’s and Proposed New Term Loan Lender’s incremental Term Loan Commitment (the “Effective Term Loan Commitment Amount”) and the aggregate amount of the Incremental Term Loans, which amounts shall be effective on the following Business Day (which time periods may shall also be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Borrowing Date for such Incremental Term Loans as an attachment thereto; provided thatLoan). Without limiting the provisions of Section 4.3, notwithstanding anything to any increase in the contrary contained herein or in any Incremental Aggregate Term Loan Agreement, such Incremental Term Loans shall mature on Commitment and the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent concurrent funding of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at subject to the option following conditions precedent: (I) as of the Borrower, by date of the Term Loan Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Term Loan Commitment all representations and warranties shall be true and correct in all material respects as though made on such date (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date) and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the Borrowers, the Agent and each Proposed New Term Loan Lender or financial institution referred Term Loan Lender that shall have agreed to provide a “Term Loan Commitment” in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any support of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent shall have executed and the Borrower delivered a Commitment and Acceptance, (CIII) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide counsel for the requested Incremental Term Loans.
(d) Notwithstanding Borrowers and for the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower Guarantors shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent;
Agent and (ivIV) the Administrative Agent Borrowers and each Proposed New Term Loan Lender shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Term Loan Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Company. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Term Loan Commitment, the Agent shall notify the Company of the amount of the fee to be charged by the Term Loan Lenders, and the Company may, at least one (1) Business Day prior to such effective date, cancel its request for the commitment increase. If the commitment increase is cancelled pursuant to the immediately preceding sentence, the Company’s cancelled increase request shall not be counted towards the Company’s two Incremental Term Notes Loan requests permitted by the first sentence of this Section 2.2(b). Upon satisfaction of the conditions precedent to any increase in favor the Aggregate Term Loan Commitment, the Agent shall promptly advise the Company and each Lender (including the Revolving Lenders) of the effective date of such increase. Upon the effective date of any increase in the Aggregate Term Loan Commitment that is supported by a Proposed New Term Loan Lender, such Proposed New Term Loan Lender shall be a party to this Agreement as a Term Loan Lender and shall have the rights and obligations of a Term Loan Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Term Loan Lender to increase its Term Loan Commitment hereunder at any time. Each Incremental Term Lenders evidencing such Incremental Loan shall mature on the Revolving Loan Termination Date and shall amortize pursuant to paragraph (c)(i) below in installments proportionate to the then remaining installments of the Initial Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Incremental Term Loans. (a) The Borrower shall have and any one or more Lenders (including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrower, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms Administrative Agent, may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to in its sole discretion), that such Lenders shall make one or more additional term loan facilities available to the Borrower under this clause (b) of Section 2.1.1 (each an “Incremental Term Loan Facility” and conditions set forth in this Section 2.17collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to the Administrative Agent or Incremental Term Loan Commitment shall set be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the date on specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrower and the Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which shall not be less than three (3i) Business Days nor more than 60 days after the date aggregate principal amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed all Incremental Term Loan Agreement Commitments shall not exceed the Maximum Incremental Amount; (ii) the Stated Maturity Date of any Incremental Term Loan shall be on or after the Stated Maturity Date for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loans as an attachment theretoLoans; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed result after giving effect to any Incremental Term Loans;
Loan; (iiiv) the Loan Parties and their Subsidiaries shall be in compliance after giving effect to any Incremental Term Loan with all conditions precedent for a Borrowing covenants set forth in the Loan Documents, including the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4; (iiiv) compliance with clause (iv) (calculated after giving effect to any such Incremental Term Loans) shall be evidenced by a Compliance Certificate delivered to the Administrative Agent; (vi) the proceeds of any Incremental Term Loan shall be used solely for the purposes described in Section 4.10; (vii) to the extent Section 4.10 permits any proceeds of any Incremental Term Loan to be used to acquire any additional Domestic Real Property, each of the conditions set forth in Sections 5.2 and 5.3 shall be fulfilled to the satisfaction of the Administrative Agent; (viii) the weighted average life of any Incremental Term Loan shall be equal to or greater than the remaining weighted average life of the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan; (ix) to the extent that the applicable interest rate margin on any Incremental Term Loan exceeds by more than 0.25% the applicable interest rate margin for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan, the applicable interest rate margin for the Multi-Draw Term Loans shall be increased so that the applicable interest rate margin for the Multi-Draw Term Loans and for such Incremental Term Loan are equal; (x) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; (xi) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans; and (xii) the Borrower shall have provided Incremental Term Loan Cash Collateral delivered any modifications or additional Real Property Documents as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, requested in its sole discretion pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRevolver Increase.
Appears in 2 contracts
Samples: Amendment Agreement (CatchMark Timber Trust, Inc.), Credit Agreement (CatchMark Timber Trust, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during after the term of this AgreementClosing Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more tranches of term loans (the “Incremental Term Loans”) be made available under this Agreement by Incremental Term Lenders pursuant to the Borrower or one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Subsidiary Borrowers; provided that both at the time of any such non-existing Lender or financial institution (A) must be an Eligible Assigneerequest and upon the effectiveness of any Incremental Amendment referred to below, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist exist. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, no Incremental Term Loan shall be made if, immediately after giving effect to such Incremental Term Loan, the aggregate outstanding principal amount of the Incremental Term Loans, plus the Total Revolving Commitment at such time, would exceed $2,000,000,000. Each Incremental Term Loan shall (a) rank pari passu in right of payment and of security, if any, with the Revolving Credit Loans and the other Incremental Term Loans, if any; (b) be subject to pricing and maturity agreed to by the Borrower and the Lenders providing such Incremental Term Loan; and (c) not be subject to any scheduled or mandatory principal amortization prior to the Maturity Date (other than customary limited amortization for institutional term loans); provided that except for pricing and maturity (as limited by the preceding paragraph (c)), the terms and conditions applicable to the Incremental Term Loans will be as set forth in this Agreement unless otherwise approved by the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.28 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan. In the case of Incremental Term Loans, the Lenders providing such Incremental Term Loans, with the consent of the Administrative Agent, may agree to allow the Borrower and its Subsidiaries and controlled Affiliates to become Eligible Assignees with respect to such Incremental Term Loans under circumstances, terms and conditions to be agreed at the time of incurrence but in all cases subject to Section 10.3(l). Incremental Term Loans may be made and may be provided by any existing Lender (but no Lender will have an obligation to provide any portion of any Incremental Term Loan) or by any other bank or other financial institution, in each case subject to the request or at the time written consent of the making Administrative Agent to the extent the Administrative Agent would have a right under this Agreement to consent to an assignment of all or any portion of any Lender’s Loans or Revolving Commitment to such existing Lender or bank, or other financial institution (any such other bank or other financial institution being called an “Incremental 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 Fundamental Documents, executed by the Borrower, each Lender agreeing to provide such commitment, each Incremental Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the proposed Borrower and the Administrative Agent, effect such amendments to this Agreement and the other Fundamental Documents (including the amendment and restatement thereof and to provide Incremental Lenders with appropriate voting and loan assignment rights and other provisions reflecting the terms of the applicable Incremental Facility) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.28. The Borrower will use the proceeds of the Incremental Term Loans;
(ii) all conditions precedent Loans for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower any purpose not prohibited by this Agreement. No Lender shall have provided be obligated to provide any portion of any Incremental Term Loan Cash Collateral as required pursuant unless it so agrees. Each Incremental Lender shall become party to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt this Agreement upon acceptance by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof an Incremental Lender Supplement signed by such party), Incremental Lender substantially in each case the form of Exhibit G-2.
(b) This Section 2.28 shall supersede any provisions in form and substance reasonably satisfactory Section 10.9 to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanscontrary.
Appears in 2 contracts
Samples: Credit Agreement (Wyndham Worldwide Corp), Credit Agreement (Wyndham Worldwide Corp)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, all of which must be Eligible Assignees. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $1,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin above the Adjusted LIBO Rate on such Other Term Loans, (B) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four and (C) the amount of any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made (or available to be made)) exceeds by more than 50 basis points the sum of (X) the Applicable Margin then in effect for Eurodollar Term Loans, (Y) the amount of the original initial discount of such Eurodollar Term Loans (expressed as a percentage of the Eurodollar Term Loans) divided by four and (Z) the amount of any “LIBOR floor” applicable to such Eurodollar Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.23 unless (i) no Default or Event on the date of Default such effectiveness, (A) the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall exist at the time of the request or at the time of be satisfied and (B) after giving effect to the making of any Incremental Loans and the proposed Incremental Term Loans;
use of the proceeds thereof, the First Lien Leverage Ratio shall not exceed 6.00 to 1.00, after giving pro forma effect to any event occurring after the last day of the most recently ended fiscal quarter for which financial statements have been delivered, as to which pro forma recalculation is appropriate (ii) all conditions precedent for a Borrowing including any Permitted Acquisition occurring after such period), as set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral 1.03, as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies if such transaction had occurred as of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each first day of the parties thereto period for which the First Lien Leverage Ratio is determined, (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivii) the Administrative Agent shall have received customary a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02, including, with respect to each Mortgage, either (A) a legal opinion to the effect that such Mortgage secures both the Term Loans and the Incremental Term Loans in accordance with Section 3.19(c) or (B) an amendment to such Mortgage and either a new title insurance policy or a modification or similar endorsement to the Collateral Agent’s title insurance policy with respect to such Mortgage insuring that such Mortgage complies with Section 3.19(c).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(e) The Sponsor shall have the right to participate in any Incremental Term Loan Commitments, provided that the Sponsor and its Affiliates may not own more than 20% of the aggregate principal amount of Loans and Commitments then outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Fairway Group Holdings Corp), Credit Agreement (Fairway Group Holdings Corp)
Incremental Term Loans. In addition to Borrowings of Revolving Loans, Tranche A Term Loans and Tranche B Term Loans specified in Section 2.01(a), (ab) The Borrower shall have the right and (c), respectively, at any time and from time to time during prior to the term Incremental Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Incremental Term Loans to the Borrower in U.S. Dollars. It is understood in each case that such offer may be made by any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (e), so long as the Administrative Agent shall have consented to such financial institution being a Lender hereunder (such consent shall not be unreasonably withheld). In the event that one or more of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be payable by the Borrower in connection therewith and the Applicable Rate and (in the case of Incremental Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and such Lenders shall execute and deliver an Incremental Term Loan Agreement and such Lenders shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement. The Incremental Term Loans to be made pursuant to any Incremental Term Loan Agreement in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any request specified above (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall be $75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term Loans of all Series, together with the aggregate unutilized Incremental Term Commitments of all Series, shall not exceed $500,000,000 at any time, (iii) the Incremental Term Loan Commitments of any Series shall terminate on the earlier of the Incremental Term Loan Availability Date and the date after the date of the respective Incremental Term Loan Agreement for such Series as agreed upon by the Borrower and the Incremental Term Loan Lenders and (iv) in no event shall the Incremental Term Loan Agreement for any Series of Incremental Term Loans provide for the final maturity of the Incremental Term Loans of such Series to be earlier than the Tranche B Term Loan Maturity Date, or for the weighted average life to maturity of the Incremental Term Loans of such Series to be less than the weighted average life to maturity of the Tranche B Term Loans as of the date of such Incremental Term Loan Agreement (such determination of average life to be made by the Administrative Agent). Following agreement by the Borrower and one or more of the Lenders as provided above, subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender of any Series agrees to the Administrative Agent shall set forth the date on which such make Incremental Term Loans are requested of such Series to be made (which shall not be less than three (3) Business Days nor more than 60 days after the Borrower from time to time during the period from and including the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed respective Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything Series to and including the contrary contained herein or in any earlier of the Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent Availability Date and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery date after the date of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement as agreed upon by the Borrower and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Lenders, in an aggregate principal amount up to but not exceeding the time amount of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies Commitment of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Series of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
Appears in 2 contracts
Samples: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder or Affiliate of a Lender or an Approved Fund, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective, and (which shall not be less than three (3iii) Business Days nor more than 60 days after the date of whether such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional 2021 Term H Loans as an attachment thereto; provided thator commitments to make term loans with terms different from the 2021 Term H Loans, notwithstanding anything to the contrary contained herein or in any Incremental including Other Term Loan Agreement, such Incremental A Loans (“Other Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedLoans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans (other than any Other Term A Loans) shall be no earlier than the Latest Term Loan Maturity Date in effect at the time the Incremental Term Loan Commitments with respect to such Other Term Loans become effective (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the latest maturity date of such refinanced Term Loans), (ii) the average life to maturity of the Other Term Loans (other than any Other Term A Loans) shall be no shorter than the then remaining average life to maturity of any other Class of Loans (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the then remaining average life to maturity of such refinanced Term Loans) and (iii) if the initial yield (excluding upfront or arrangement or similar fees payable to the arranger, if any, of such loan) on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (the “Other Term Loan Margin”) (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same (as opposed to the arranger, if any, thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (1) the margin applicable for Eurodollar Term Loans of any Class (other than Other Term A Loans and any other Class of Term Loans that does not elect to be subject to this clause (iii) in its Incremental Term Loan Assumption Agreement or Loan Modification Agreement) (which margin shall be the sum of the Applicable Percentage for Eurodollar Term Loans of such Class (determined, solely for purposes of this Section 2.24, by reference to the Secured Net Leverage Ratio and the Total Leverage Ratio, as and to the extent applicable, in each case calculated on a pro forma basis after giving effect to any Specified Transaction to which such Other Term Loans relate and any Indebtedness incurred or expected to be incurred in connection therewith) (such margin, the “Other Term Loan Reference Margin”) increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) plus (2) the OID (if any) initially paid in respect of such Term Loans (for any Class of Term Loans, the applicable amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) then (I) the Applicable Percentage then in effect for such Class of Term Loans shall automatically be increased to the Other Term Loan Reference Margin plus the applicable Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential), (II) each interest rate margin with respect to such Class of Term Loans set forth in the definition of Applicable Percentage shall be increased by the Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential) and (III) the Applicable Percentage for such Class of Term Loans will thereafter be determined in accordance with the definition of Applicable Percentage as so amended and by reference to the Secured Net Leverage Ratio or Leverage Ratio, as the case may be and to the extent applicable; provided that in the event that the Applicable Percentage with respect to any such Class of Term Loans would be subject to any decrease as a result of any change in the Secured Net Leverage Ratio or the Leverage Ratio, as the case may be and to the extent applicable, the amount of any such decrease in the Applicable Percentage with respect to such Class of Term Loans shall not exceed the amount of any corresponding decrease, if any, in the Other Term Loan Margin as a result of such changes in the Secured Net Leverage Ratio and the Total Leverage Ratio, as the case may be and to the extent applicable, in each case effective upon the incurrence of such Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.24 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all applicable conditions precedent for a Borrowing set forth in paragraphs (b) and (c) of Section 4.02 have been satisfied;
(iii) the Borrower 4.01 shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto Borrower and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding 2021 Term H Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar 2021 Term H Term Loan Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar 2021 Term H Loan Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(iii) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Fourth Amendment and Restatement Agreement (Community Health Systems Inc)
Incremental Term Loans. In addition to Borrowings of U.S. Dollar Revolving Loans, Australian Dollar Revolving Loans, Tranche A Term Loans and Tranche B Term Loans specified in Section 2.01(a), (ab), (c) The Borrower shall have the right and (d), respectively, at any time and from time to time during prior to the term Incremental Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Incremental Term Loans to the Borrower in U.S. Dollars. It is understood in each case that such offer may be made by any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (f), so long as the Administrative Agent shall have consented to such financial institution being a Lender hereunder (such consent shall not be unreasonably withheld). In the event that one or more of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be payable by the Borrower in connection therewith and the Applicable Rate and (in the case of Incremental Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and such Lenders shall execute and deliver a Incremental Term Loan Agreement and such Lenders shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement. The Incremental Term Loans to be made pursuant to any Incremental Term Loan Agreement in response to any such request by the Borrower shall be deemed to be a separate "Series" of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any request specified above (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall be $75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term Loans of all Series, together with the aggregate unutilized Incremental Term Commitments of all Series, shall not exceed $300,000,000 at any time, (iii) the Incremental Term Loan Commitments of any Series shall terminate on the earlier of the Incremental Term Loan Availability Date and the date 30 days after the date of the respective Incremental Term Loan Agreement for such Series and (iv) in no event shall the Incremental Term Loan Agreement for any Series of Incremental Term Loans provide for the final maturity of the Incremental Term Loans of such Series to be earlier than the Tranche B Term Loan Maturity Date, or for the weighted average life to maturity of the Incremental Term Loans of such Series to be less than the weighted average life to maturity of the Tranche B Term Loans as of the date of such Incremental Term Loan Agreement (such determination of average life to be made by the Administrative Agent). Following agreement by the Borrower and one or more of the Lenders as provided above, subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender of any Series agrees to the Administrative Agent shall set forth the date on which such make Incremental Term Loans are requested of such Series to be made (which shall not be less than three (3) Business Days nor more than 60 the Borrower from time to time during the period from and including the date of the respective Incremental Term Loan Agreement for such Series to and including the earlier of the Incremental Term Loan Availability Date and the date 30 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on in an aggregate principal amount up to but not exceeding the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent amount of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to Commitment of such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Series of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
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Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan Agreements. Such notice Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided that on a Pro Forma Basis after giving effect to the Administrative Agent borrowing of the Incremental Term Loans and the use of proceeds thereof, the Borrower is in compliance with the applicable Financial Covenants, as of the latest Measurement Period (or with respect to Section 9.2, as of such date); and provided, further that:
(i) no Event of Default shall set forth exist after giving effect to such Incremental Term Loans on the date on which Increased Amount Date (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default at the time of the relevant acquisition agreement was entered into shall be the standard);
(ii) such Incremental Term Loans shall mature no earlier than the Term Loans under any then outstanding Facility (and if such Incremental Term Loans are requested secured on a junior lien basis to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion any of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan AgreementFacilities, such Incremental Term Loans shall mature no earlier than 180 days after the Latest Maturity Date), and such Incremental Term Loans shall not have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility; provided that any Incremental Term Loans incurred during the Designated Period that are secured on a pari passu basis with the Loans may mature earlier than the Term Loans under any then outstanding Facility and may have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility so long as such Incremental Term Loans shall not mature prior to April 17, 2025;
(iii) solely with respect to any Incremental Term Loans that are secured on a pari passu basis and are pari passu in right of payment with the Loans and are incurred prior to the date that is 24 months after the Closing Date, if the Effective Yield on any Incremental Term Loans as of the date of determination and prior to giving effect to this clause (iii) exceeds the Effective Yield on the Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the Effective Yield on the Tranche B Term Loans is 50 basis points less than the Effective Yield on such Incremental Term Loans;
(iv) the terms, provisions and documentation of the Incremental Term Loans, except as otherwise set forth herein, shall be as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that to the extent the terms of such Incremental Term Loans are not consistent with the Facilities (other than provisions relating to original issue discount, fees, premiums, and optional prepayment or redemption terms, interest rates (subject to clause (iii) above) and subject to clause (ii) above, maturity and amortization which shall be as agreed between the applicable Borrower and the Lenders providing such Incremental Term Loans), the terms of such Incremental Term Loans shall be not be materially more favorable, taken as a whole, to such lenders providing such Incremental Term Loans than the terms of the Tranche B Term Loans, unless the existing Lenders receive the benefit of such favorable terms, or such terms are reasonably satisfactory to the Administrative Agent (provided that the terms applicable after the Latest Maturity DateDate are reasonably acceptable to the Administrative Agent);
(1) if secured on a pari passu basis with the other Obligations, all collateral therefor shall be secured by the Security Documents and the Loan Parties and the Administrative Agent shall have entered into such amendments to the Security Documents (including modifications to the Mortgages and date down endorsements to the mortgagee’s title insurance policies issued to Administrative Agent with respect to the Mortgages) as may be reasonably requested by the Administrative Agent (which shall not require any mandatory prepayments thereof and shall not amortize. In consent from any Lender) in connection with any the Incremental Term Loans and the Borrower shall have delivered such requestother documents, the consent certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and (2) if secured on a junior lien basis with the other Obligations, all collateral therefor shall be required secured by collateral documentation that is substantially similar to the Security Documents (and in any event no more restrictive in any material respect), the Borrower shall have delivered such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and the agent for such Incremental Term Loans shall have executed the Junior Lien Intercreditor Agreement if reasonably requested by the Administrative Agent; and
(vi) the Incremental Term Loans shall rank pari passu in right of payment and pari passu or junior in right of security with the Term Loans.
(b) The Borrower may approach any Lender or any other Person that would be a permitted Assignee pursuant to Section 12.6 (including consent, if applicable, from the Administrative Agent, such consent not to be unreasonably withheld, conditioned withheld or delayed), but no consent ) to provide all or a portion of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such the Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Increased Amount Date shall be designated an incremental series (an “Incremental Series”) of Incremental Term Loans for all purposes of this Agreement and shall be deemed “Term Loans” for all purposes of this Agreement; provided that any Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, be designated as an increase in any previously established Incremental Series of Incremental Term Loans made to the Borrower.
(c) The Borrower and each Incremental Term Lender that has agreed Loans shall be established pursuant to provide an Incremental Term Loan pursuant to such request shall execute and deliver to Amendment executed by the Borrower, the Administrative Agent an and the Incremental Term Lenders providing such Incremental Term Loans which shall be consistent with the provisions set forth in paragraph (a) above (which shall not require the consent of any other Lender). Each Incremental Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto and thereto. In connection with the Incremental Amendment, amendments shall be made to this Agreement without the consent of any Lender or other Person, to reflect such Incremental Term Loans as may be necessary or appropriate in the reasonable opinion of the Borrower and such other documentation as the Administrative Agent shall reasonably specify to effect the provisions of this Section 2.4, including any amendments necessary to provide for the requested that such Incremental Term LoansLoans are fungible with the existing Tranche B Term Loans for U.S. income taxes.
(d) This Section 2.4 shall supersede any provisions in Section 12.1 to the contrary.
(e) Notwithstanding anything to the foregoingcontrary, no Incremental Term Loan Agreement shall become effective and no (x) the aggregate principal amount of Incremental Term Loans shall be provided under incurred pursuant to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have 2.4 plus increased Revolving Credit Commitments provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or 3.3 plus any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Indebtedness incurred pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partySection 9.3(c), in each case case, during the Designated Period that are secured on a pari passu basis with the other Obligations shall not exceed $50,000,000 in form the aggregate and substance reasonably satisfactory to the Administrative Agent;
(ivy) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any proceeds of all Incremental Term Lender making an Loans incurred pursuant to Incremental Term Loan, Loan Commitments during the Borrower Designated Period shall have executed only be used to fund the purchase of limited partnership units under the Partnership Parks Agreements and delivered Incremental Term Notes in favor to pay fees and expenses associated with the incurrence of such Incremental Term Lenders evidencing such Incremental Term LoansIndebtedness.
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Incremental Term Loans. (a) The Each Incremental Amendment Additional Term Lender hereby agrees, severally and not jointly, to make an Incremental Term Loan to the Borrower shall have on the right from time Incremental Amendment Effective Date in an aggregate principal amount equal to time during the term of this Agreementamount set forth opposite such Incremental Amendment Additional Term Lender’s name on Schedule I attached hereto, on the terms set forth herein and in the Credit Agreement (as amended hereby), and subject to the conditions set forth below. The Incremental Term Loans shall be deemed to be “Term Loans” as defined in the Credit Agreement (as amended hereby) for all purposes of the Loan Documents having terms and conditions provisions identical to those applicable to the Term Loans outstanding on the date hereof immediately prior to the Incremental Amendment Effective Date (the “Existing Term Loans”) except as otherwise set forth in this Section 2.17, to request in writing incremental term loans Amendment.
(the “Incremental Term Loans”b) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such The Incremental Term Loans are requested to shall be made (which shall not be less than three (3) Business Days nor more than 60 days after as a single Eurodollar Borrowing, with an initial Interest Period that commences on the date of such notice (which time periods may be modified or waived at Incremental Amendment Effective Date and ends on the discretion last day of the Administrative Agent)) and include Interest Period applicable to the Existing Term Loans on the Incremental Amendment Effective Date. During such initial Interest Period, the Adjusted LIBO Rate applicable completed Incremental Term Loan Agreement for such to the Incremental Term Loans shall be the same Adjusted LIBO Rate applicable for the Existing Term Loans as an attachment thereto; provided that, notwithstanding of the Incremental Amendment Effective Date. Notwithstanding anything to the contrary contained herein or in any Incremental Term Loan the Credit Agreement, such from and after the Incremental Amendment Effective Date, the Existing Term Loans and the Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof constitute a single Class and shall not amortize. In connection with any such request, the consent a single Borrowing of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at for all purposes under the option of the Borrower, by Credit Agreement (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”as amended hereby); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Unless previously terminated, the commitments of the Incremental Amendment Additional Term Lenders pursuant to Section 2(a) shall terminate upon the making of the Incremental Term Lender that has agreed to provide an Loans on the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansAmendment Effective Date.
(d) Notwithstanding the foregoing, no Each Incremental Amendment Additional Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
Lender (i) no Default or Event of Default shall exist at the time confirms that a copy of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Credit Agreement and the Administrative Agent shall have received other applicable Loan Documents, together with copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, financial statements referred to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or therein and such other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form documents and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation information as it shall reasonably request, in each case in form has deemed appropriate to make its own credit analysis and substance reasonably satisfactory decision to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making enter into this Amendment and make an Incremental Term Loan, has been made available to such Incremental Amendment Additional Term Lender by the Borrower Administrative Agent; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any of Credit Suisse Securities (USA) LLC, Xxxxxxx Xxxxx Lending Partners LLC or Xxxxxx Xxxxxxx Senior Funding, Inc., each in its capacity as a lead arranger and bookrunner with respect to this Amendment (collectively, the “Incremental Amendment Arrangers”), or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other applicable Loan Documents, including this Amendment; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Incremental Amendment Effective Date such Incremental Amendment Additional Term Lender shall be a “Lender” and an “Additional Term Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have executed all rights of a Lender and delivered Incremental an Additional Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLender thereunder.
Appears in 1 contract
Samples: Credit Agreement (Endurance International Group Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more New Tranche B Term Loan commitments (the “New Tranche B Term Loan Commitments”), in an aggregate amount for all such New Tranche B Term Loan Commitments not in excess of the Maximum Incremental Facilities Amount. Each such notice shall set forth specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Tranche B Term Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which Administrative Agent; provided that the Borrower shall not be less than three (3) Business Days nor more than 60 days after first offer the date of such notice (which time periods may be modified or waived at the discretion Lenders to provide all of the Administrative Agent)New Tranche B Term Loan Commitments prior to offering any other Person that is an eligible assignee pursuant to Section 13.6(b) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”13.6(g); provided further that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Tranche B Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Tranche B Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Tranche B Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unless:
that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Tranche B Term Loan Commitments and to the making of any Series of New Tranche B Term Loans pursuant thereto, as applicable; (2) both before and after giving effect to the making of any Series of New Tranche B Term Loans, each of the conditions set forth in Section 7 shall be satisfied; (3) Holdings, the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the covenants set forth in Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Tranche B Term Loan Commitments, the incurrence of the New Tranche B Term Loans and any Investment to be consummated in connection therewith; (4) the New Tranche B Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Tranche B Term Loan Lenders, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(b); (5) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Tranche B Term Loan Commitments, as applicable; and (6) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Tranche B Term Loans made on an Increased Amount Date that have terms and provisions that differ from Tranche B Term Loans outstanding on the date on which such New Tranche B Term Loans are made shall be designated as a separate series (a “Series”) of Tranche B Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Tranche B Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Tranche B Term Loan Commitment (each, a “New Tranche B Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Tranche B Term Loan”) in an amount equal to its New Tranche B Term Loan Commitment of such Series, and (ii) each New Tranche B Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Tranche B Term Loan Commitment of such Series and the New Tranche B Term Loans of such Series made pursuant thereto. On any Increased Amount Date, the outstanding principal amount described in clause (x) of Section 2.5(b) shall be deemed increased after the making of any New Tranche B Term Loans that constitute the same Series as the existing Tranche B Term Loans by the aggregate principal amount of such new Tranche B Term Loans. The terms and provisions of the New Tranche B Term Loans and New Tranche B Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans; provided, however, that (i) the applicable New Tranche B Term Loan Maturity Date of each Series shall not be earlier than the Tranche B Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of any New Tranche B Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche B Term Loans, (iii) the rate of interest applicable to the New Tranche B Term Loans of each Series and, subject to the foregoing clause (ii) the schedule of required repayments of principal thereof, shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement, (iv) all other terms applicable to the New Tranche B Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement) and (v) if the Initial Yield applicable to the additional New Tranche B Term Loans extended pursuant to this Section 2.15(a) exceeds by more than 50 basis points the sum of the Applicable LIBOR Margin (as increased by the amount that the “LIBOR floor” set forth in the proviso to the definition of “LIBOR Rate” exceeds the LIBOR Rate that would otherwise be in effect at such time) then in effect for Tranche B Term Loans that are LIBOR Loans, plus one fourth of the Up-Front Fees paid in respect of the Tranche B Term Loans incurred pursuant to Section 2.1 hereunder, then the Applicable LIBOR Margin of the Tranche B Term Loans shall increase by the amount necessary to reduce such difference to 50 basis points. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15.
(i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the maturity date or other scheduled date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.15(b). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.15(b) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.15 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full except in accordance with the last sentence of
Section 5.1 (a). No Lender shall have any obligation to agree to have any of its Term Loans converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments and/or Extended Revolving Credit Commitments existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together, an “Existing Revolving Credit Class”) be converted to extend the request termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or at a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”; each Extended Revolving Credit Commitment and related Extended Revolving Credit Loans together an “Extended Revolving Credit Class”) and to provide for other terms consistent with this Section 2.15(b). In order to establish any Extended Revolving Credit Commitments, the time Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the making Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed Incremental Term Loans;
terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended except (iix) all conditions precedent or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of such Existing Revolving Credit Class and the scheduled termination date of the revolving credit commitments of such Extended Revolving Credit Commitments may be delayed to later dates than the corresponding termination dates of the Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for such Existing Revolving Credit Class and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to such Extended Revolving Credit Class may be higher or lower than the Revolving Credit Commitment Fee Rate for such Existing Revolving Credit Class, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.15(b) or otherwise, (1) the borrowing and repayment (other than in connection with a Borrowing permanent repayment and termination of commitments) of Loans with respect to any Extended Revolving Credit Class shall be made on a pro rata basis with all other Revolving Credit Classes, (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Existing Revolving Credit Classes set forth in Section 4.02 have been satisfied;
13.6 and (iii3)(I) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as Section 4.2, no permanent repayment of Revolving Credit Loans (and corresponding permanent reduction of Revolving Credit Commitments) or permanent reduction of Revolving Commitments shall be permitted unless all earlier maturing Revolving Credit Commitments and Revolving Credit Loans related to which an executed counterpart such Commitments shall not have been received, receipt terminated and repaid in full and (II) no termination of Revolving Credit Commitments and no repayment of Revolving Credit Loans accompanied by the Administrative Agent of telegraphic, telecopy, electronic communication a corresponding permanent reduction in Revolving Credit Commitments shall be permitted unless such termination or other written confirmation from such party of execution of repayment (and corresponding reduction) is accompanied by a counterpart thereof by such partypro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of all earlier maturing Revolving Credit Commitments and Revolving Credit Loans related to such Commitments (or all earlier maturing Revolving Credit Commitments and Revolving Credit Loans related to such Commitments are terminated and repaid in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent full). No Lender shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory any obligation to the Administrative Agent; and
(v) agree to the extent requested by have any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansits Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request.
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Incremental Term Loans. (a) The Lead Borrower shall have may, by written notice to the right Administrative Agent from time to time during time, request that one or more Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and/or one or more other Persons which are Eligible Assignees and which will become Lenders, provide, after the term Closing Date, an increase in any existing Class of Term Loans (except as otherwise provided in this AgreementSection 2.22, which shall be on the same terms as, and become a part of, the applicable Class of Term Loans hereunder) and, subject to the terms and conditions set forth contained in this Section 2.17Agreement and in the respective Incremental Term Loan Assumption Agreement, to request in writing incremental term loans make Term Loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders of the applicable class pursuant to one or more thereto. Such notice shall set forth (i) the amount of the Incremental Term Loan Agreements. Such notice Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 (or such lesser amount as may be acceptable to the Administrative Agent shall set forth Agent) and (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice); provided that:
(which time periods may b) no Lender shall be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Lead Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Term Loan Assumption Agreement for as provided in clause (b) of this Section 2.22, such Lender shall not be obligated to fund any Incremental Term Loans,
(c) any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender,
(d) any Affiliated Lender may provide an Incremental Term Loan Commitment; provided, that such Incremental Term Loan Commitment shall be subject to the applicable restrictions in Section 9.04(f);
(e) the aggregate principal amount of all Incremental Term Loans pursuant to this Section 2.22 at any time shall not exceed the Maximum Incremental Amount at such time;
(f) the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Lead Borrower and each such Incremental Term Loan Lender,
(g) the new Incremental Term Loans shall have the same Applicable Margin as the Class of Term Loans to which such Incremental Term Loans are being added,
(h) the new Incremental Term Loans shall have the same repayment dates as an attachment thereto; provided that, notwithstanding anything then remain with respect to the contrary contained herein or in Class of Term Loans to which such new Incremental Term Loans are being added (with the amount of each repayment of Incremental Term Loans to be made by the Lead Borrower on the repayment dates to be the same (on a proportionate basis) as is theretofore applicable to the Class of Term Loans to which such Incremental Term Loans are being added, thereby increasing the amount of each then remaining repayment of the respective Class of Term Loans proportionately),
(i) the new Incremental Term Loans shall have the same Maturity Date as the Class of Term Loans to which such Incremental Term Loans are being added,
(j) the proceeds of all Incremental Term Loans to be made pursuant to any Incremental Term Loan AgreementCommitments shall be used only for the purposes permitted by Section 3.13,
(k) all Incremental Term Loans shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under the Guaranty, and rank pari passu in right of payment and pari passu in right of security in respect of the Collateral with the Term Loans, and
(l) except as otherwise provided above, such Incremental Term Loans shall mature on have the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any same terms as the Class of Term Loans to which such requestIncremental Term Loans are being added.
(m) At the time of the provision of the Incremental Term Loan Commitments pursuant to this Section 2.22, the consent of Lead Borrower, the Administrative Agent shall be required (and each such consent not Lender or other Eligible Assignee which agrees to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing provide an Incremental Term Loan pursuant to such request) is required to be obtained.
Commitment (b) Any such Incremental Term Loans shall be madeeach, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loans.
(d) Loan Commitment of each Incremental Term Lender. Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective under this Section 2.22 unless on the date of such effectiveness, all Incremental Commitment Requirements are satisfied.
(n) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and no terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Lead Borrower may revise this Agreement to evidence such amendments.
(o) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Lead Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition the scheduled amortization payments under Sections 2.11(a)(i), (ii), (iii) and (iv), as applicable, required to be made after the making of such Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt ratably increased by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders evidencing on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such Incremental Term Loansrecalculation.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementmay, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Banks during the period from the Original Closing Date to the date that is six (6) months prior to the Tranche A Maturity Date (with respect to an increase in the Tranche A Loan) or during the period from the Original Closing Date to the date that is six (6) months prior the Tranche B Maturity Date (with respect to an increase in the Tranche B Loan), request incremental Loan Commitments in an amount not to exceed the aggregate amount of $250,000,000 (such that the aggregate amount of all initial Loans and incremental Loans made hereunder shall not exceed $500,000,000) from any additional lender or any existing Bank willing in its sole discretion to provide such incremental Loans to the Borrower.
(b) In connection with increases to the Loan Commitments of any or all of the Banks as provided in paragraph (a) above, Borrower shall, at the request of the applicable Bank, execute supplemental Notes (a “Supplemental Note”) evidencing such increases, as well as such other confirmatory modifications to this Agreement as Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizereasonably request. In connection with any such requestthe addition of lender(s) pursuant to paragraph (a) above (each, a “New Bank”), (i) Borrower, Administrative Agent and each New Bank shall execute an Acceptance Letter in the form of EXHIBIT F, (ii) if the New Bank so requests Borrower shall execute a Note to each New Bank in the amount of the New Bank’s Loan Commitment (a “New Note”) and (iii) Borrower and Administrative Agent (with the consent of only the New Banks and those Banks increasing their Loan Commitments) shall execute such confirmatory modifications to this Agreement as Administrative Agent shall be required (reasonably request, whereupon the New Bank shall become, and have the rights and obligations of, a “Bank”, with a Loan Commitment in the amount set forth in such consent Acceptance Letter. The Banks shall have no right of approval with respect to a New Bank’s becoming a Bank or the amount of its Loan Commitment, provided, however, that Administrative Agent and the Borrower shall have such right of approval, not to be unreasonably withheld, conditioned unless such New Bank is a Bank or delayed), but no consent an Affiliate of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans a Bank. Each Supplemental Note and New Note shall be made, at the option constitute “Notes” for all purposes of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Xxxxxxxx’s notice under this Section 2.15 shall set forth:
(i) the amount of the incremental Loan pursuant to Commitments being requested, which must be at least $50,000,000;
(ii) whether such request shall execute and deliver increase is to the Administrative Agent an Incremental Term Tranche A Commitment or to the Tranche B Commitment;
(iii) the identity of the proposed incremental Bank(s); and
(iv) the date on which such incremental Loan Agreement and Commitments are requested to become effective (the “Increased Amount Date”), which shall be a date not less than ten (10) Banking Days, nor more than thirty (30) Banking Days after the date on which such other documentation as notice is delivered to the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansBanks.
(d) Upon receipt of such notice, Administrative Agent shall promptly send a copy of such notice to each Bank.
(e) Notwithstanding the foregoing, no Incremental Term incremental Loan Agreement Commitment shall become effective under this Section 2.15 and no Incremental Term incremental Loans shall be provided under this Section 2.17 made unless:
(i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a financial officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative AgentXxxxxxxx;
(ivii) the Administrative Agent shall have received new Note(s), customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation as it shall reasonably requestand, in each case in form and substance reasonably satisfactory to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional customary documents and filings as the Administrative Agent may reasonably require; and
(viii) Borrower shall be in pro forma compliance with the covenants set forth in Article VIII after giving effect to such incremental Loan Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(f) The terms and provisions of the new Loans and new Loan Commitments shall be identical to the applicable existing Loans; provided that, the fees payable by the Borrower upon any increase of the Loan Commitments shall be agreed upon by the Borrower, the Administrative Agent, the New Banks and those existing Banks increasing their Loan Commitments. This Agreement shall be amended by the Administrative Agent, Borrower, the New Banks and those existing Banks increasing their Loan Commitments (but without the consent of any other Banks) to the extent requested (but only to the extent) necessary to reflect the existence and terms of the applicable incremental Loan Commitments and incremental Loans, and fees associated therewith.
(g) Nothing in this Section 2.15 shall constitute or be deemed to constitute an agreement or commitment by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansBank to increase its Loans or Loan Commitment hereunder.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term of this AgreementClosing Date, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans one or more new commitments which may be of the same Class as any outstanding Term Loan (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”). Any request under this Section 2.12 shall specify the requested amount and proposed terms of the relevant Incremental Term Loans”) . Incremental Term Loans may be made under this Agreement by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment, nor will the Borrower have any obligation to approach any existing Lenders pursuant to one or more provide any Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatCommitment, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender’s making such Incremental Term Loans to the extent such consent, if any, would be required under Section 11.6(b)(iii) for an assignment of Term Loans to such Additional Lender.
(b) Notwithstanding anything to the contrary herein, without the prior written consent of the Required Lenders, the aggregate principal amount of Incremental Term Loans shall not exceed at the time Incurred, the sum of (i) (any such non-existing Lender or financial institution Incremental Term Loans and any Incremental Equivalent Debt, in each case, to the extent Incurred under this clause (i), “Dollar Basket Incremental Debt”) the greater of (A) must be an Eligible Assignee, $200,000,000 and (B) must 100.0% of the amount of EBITDA for the most recent four (4) consecutive Fiscal Quarters for which financial statements of the Borrower have been delivered hereunder, less the aggregate outstanding principal amount of all Incremental Term Loans and Incremental Equivalent Debt established prior to such time to the extent constituting Dollar Basket Incremental Debt; plus (ii) an additional amount (any such Incremental Term Loans and any Incremental Equivalent Debt, in each case, to the extent Incurred under this clause (ii), “Ratio-Based Incremental Debt”), so long as, in the case of this clause (ii), upon the effectiveness of the applicable Incremental Term Amendment or the relevant documentation relating to the relevant Incremental Equivalent Debt, as the case may be, and after giving effect to any such Incurrence on a pro forma basis (and after giving effect to any acquisition or other Investment consummated in connection therewith on a pro forma basis), the Consolidated Secured Leverage Ratio is no greater than 3.00 to 1.00; provided that solely for purposes of calculating the Consolidated Secured Leverage Ratio for purposes of permitting the Incurrence of such Ratio-Based Incremental Debt (x) the Consolidated Secured Leverage Ratio shall be determined without netting the proceeds from the Incurrence of such Ratio-Based Incremental Debt and (y) any Incremental Term Loans and Incremental Equivalent Debt (or any Refinancing Indebtedness in respect thereof) that is or contemplated to be junior in right of security with outstanding Initial Term Loans or unsecured shall be deemed to be secured on a pari passu basis with the outstanding Initial Term Loans; plus (iii) the aggregate amount of all voluntary prepayments of any Term Loans, Incremental Term Loans and/or Incremental Equivalent Debt, that, in each case, is secured on a pari passu basis with the Term Loans (provided that such prepayment is not funded with a concurrent Incurrence of Long-Term Indebtedness (other than loans under the ABL Agreement or loans under any other revolving credit facility)), less the aggregate outstanding principal amount of all Incremental Term Loans and Incremental Equivalent Debt established prior to such time pursuant to this clause (iii). The Borrower shall be entitled to elect to use clause (ii) above, before using clause (i) or (iii) above, to the extent permitted thereby; provided that, unless elected otherwise by the Borrower, any Incremental Term Loans and any Incremental Equivalent Debt shall be deemed to have been Incurred first in reliance on clause (ii) above to the extent permitted thereby.
(c) On any date on which any Incremental Term Commitments of any Class are effected (including through any Term Loan Increase) (each such date an “Incremental Tranche Closing Date”), subject to the satisfaction of the terms and conditions in this Section 2.12 (i) each Incremental Term Lender of such Class shall make a Term Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Class and (ii) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto.
(d) The terms, provisions and documentation of any Incremental Term Loan or any Incremental Term Commitment shall be as agreed between the Borrower and the applicable Incremental Term Lenders providing such Incremental Term Loans or Incremental Term Commitments, and except as otherwise set forth herein, to the extent not substantially consistent with any Class of at least $5,000,000 unless Term Loans existing on the Incremental Tranche Closing Date (as determined by the Borrower), shall be consistent with clauses (i) through (iii) below, as applicable, and otherwise agreed shall be reasonably satisfactory to by the Administrative Agent (in its capacity as such) (other than in respect of pricing, fees, rate floors, amortization or maturity); provided that terms that are not substantially consistent with any Class of Term Loans existing on the Incremental Tranche Closing Date may be added without the consent of the Administrative Agent or any existing Lender to the extent such terms are (x) also added for the benefit of the Term Loans existing on the Incremental Tranche Closing Date or (y) only applicable after the Maturity Date of any Term Loans existing on the Incremental Tranche Closing Date. Notwithstanding the foregoing, in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be identical (other than with respect to underwriting, commitment or upfront fees, original issue discount or similar fees) to the applicable Term Loans being increased. In any event,
(i) each Incremental Term Loan or Incremental Term Commitment:
(A) at the Borrower’s option, may rank pari passu or junior in right of payment with the other Term Loans or Commitments, as applicable, of such Class, may be pari passu or junior in right of security with the other Term Loans or Commitments, as applicable, of such Class (and, if junior in right of security, subject to an Acceptable Intercreditor Agreement) or may be unsecured;
(B) shall not mature earlier than the Maturity Date with respect to the Initial Term Loans;
(C) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans on the date of Incurrence of such Incremental Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such Incurrence);
(D) shall have fees and, subject to clauses (d)(i)(B) and (d)(i)(C) above, amortization determined by the Borrower and (C) must become an the applicable Incremental Term Lender under this Agreement by execution and delivery Lenders; and
(E) may, in the case of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an or Incremental Term Lender Commitment that is pari passu in right of payment and any Lender or financial institution approached to provide an Incremental right of security with the Initial Term Loan may elect or declineLoans, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term LoansAmendment;
(ii) all conditions precedent for a Borrowing the All-In-Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in Section 4.02 have been satisfied;each applicable Incremental Term Amendment; provided, however, that the All-In-Yield applicable to any such Incremental Term Loans that has a scheduled maturity date earlier than twelve months after the Maturity Date, shall not be greater than the applicable All-In-Yield payable pursuant to the terms of this Agreement with respect to the Initial Term Loans plus 50 basis points per annum, unless the Interest Rate (together with, as provided in the proviso below, the Eurodollar Rate or Base Rate floor) with respect to such Initial Term Loans is increased so as to cause the then applicable All-In-Yield under this Agreement on such Initial Term Loans to equal the All-In-Yield then applicable to the Incremental Term Loans minus 50 basis points; provided that any increase in All-In-Yield to the Initial Term Loans due to the application of any Eurodollar Rate floor or Base Rate floor on any Incremental Term Loan shall be effected solely through an increase in (or implementation of, as applicable) any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans; and
(iii) there shall be no guarantors in respect of such Incremental Term Loans that are not Guarantors and such Incremental Term Loans shall not include any borrower other than the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedand, to the extent applicablesecured, by each of the parties thereto (or, in the case of any party as to which an executed counterpart Incremental Term Loans shall not have been received, receipt be secured by the Administrative Agent of telegraphic, telecopy, electronic communication assets other than Collateral (except pursuant to an escrow or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory similar arrangement with respect to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor proceeds of such Incremental Term Lenders evidencing such Incremental Term Loans).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Amount available at the time such Incremental Term Lenders pursuant Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) from one or more Incremental Term Loan AgreementsLenders (which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans in their sole discretion. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedbecome effective.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be ; provided under this Section 2.17 unlessthat:
(i) no Default or Event of Default the Incremental Loans shall exist at the time not be guaranteed by any subsidiaries of the request or at Borrower that do not guarantee the time of Obligations and shall be secured on a pari passu basis by the making of same Collateral (and no additional Collateral) securing the proposed Obligations and any Incremental Term Loans;
Facility shall have the same payment priority as the Term B Facility, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiia) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies scheduled final maturity date of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Facility shall be no earlier than the Term B Maturity Date and (b) the Weighted Average Life to Maturity of any Incremental Term Loan, Facility shall be no shorter than the Borrower shall have executed and delivered Incremental remaining Weighted Average Life to Maturity of the Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.B Facility,
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right At any time and from time to time during prior to December 31, 2006, the Borrower may request one or more additional term of this Agreementloan facilities, and subject to in accordance with the terms and conditions procedures set forth in this Section 2.17Sections 2.20(b) and 2.20(c). Each loan to be made under any such additional facility is referred to herein as an “Incremental Term Loan” and, to request in writing incremental term loans (collectively, as the “Incremental Term Loans”) be made under this Agreement by .” All Incremental Term Lenders pursuant Loans made on the same day shall be deemed to one or more be a separate “Series” of Incremental Term Loan AgreementsLoans. Such notice The aggregate principal amount of the Incremental Term Loans made hereunder shall not exceed $75,000,000 (without regard to the Administrative Agent shall set forth the date on which any repayment of such Incremental Term Loans). The initial aggregate principal amount of all Incremental Term Loans are requested to be made (which of the same Series shall not be less than three $10,000,000 (3or, if less, in an amount equal to $75,000,000 minus the aggregate principal amount of Incremental Term Loans previously made pursuant to this Section 2.20). The Incremental Term Loans of any Series shall:
(i) Business Days nor more than 60 days after upon the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Effective Date relating to such Series, constitute part of, and be added to, the Tranche B Term Loans (and the Incremental Term Lenders of such Series shall become Tranche B Lenders) for all purposes under this Agreement and the other Credit Documents, including for purposes of the sharing of Collateral and guarantees under the Security Documents all on a pari passu basis with all other Obligations;
(ii) be issued at par without any original issue discount;
(iii) bear interest at the same rates applicable to the Tranche B Term Loans or have such other pricing as may be agreed by the Borrower, the Administrative Agent and the Incremental Term Lenders of such Series; provided, however, that if the margins to be added to the Base Rate or the LIBOR Rate for any Series of Incremental Term Loans are greater than the margins set forth for Tranche B Term Loans in the definition of “Applicable Margin Percentage” contained in Section 1.1, the Applicable Margin Percentages for outstanding Tranche B Term Loans shall automatically be increased to any extent required so that the margin or margins applicable thereto are equal to the margin for such Series of Incremental Term Loans, without any action or consent of the Borrower, the Administrative Agent or any Lender; and
(iv) require amortization payments on the same dates and in an amount which shall be the same (on a proportionate basis) as an attachment theretoare thereafter required with respect to the Tranche B Term Loans under Section 2.6(b) (as such amounts may have been previously adjusted in accordance with the terms of this Agreement as a result of prior prepayments on the Term Loans, including adjustments made pursuant to Section 2.6(g) or Section 2.7(b)).
(b) If the Borrower desires to incur a Series of Incremental Term Loans, the Borrower shall request of each Lender that it fund all or any portion of such Series of Incremental Term Loans up to a stated maximum aggregate principal amount and at proposed interest rates and fees for such Series of Incremental Term Loans set forth in such request (provided that such terms shall be in accordance with this Section 2.20, and provided further that the Borrower shall, concurrently with such request, notify the Administrative Agent of such request). Any Lender may (but is not obligated to) fund all or any portion of the requested Series of Incremental Term Loans; provided that, notwithstanding anything to that any Lender that requests a portion of the contrary contained herein or in any applicable Incremental Term Loan AgreementCommitments equal to or greater than its pro rata share (based on outstanding Loans, such Letter of Credit Exposure and unutilized Commitments or, after the termination of the Revolving Credit Commitments, outstanding Loans and Letter of Credit Exposure) of the proposed Series of Incremental Term Loans shall mature receive no less than its pro rata share of such Incremental Term Loan Commitments. If the Lenders are not willing to provide all of the Series of Incremental Term Loans requested on the Maturity Dateproposed terms, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the written consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent the Borrower may request one or more Eligible Assignees to become a Lender hereunder and to fund all or any portion of any Lender (other than any Lender providing an the requested Series of Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Loans; provided that Incremental Term Loans to be made by any Eligible Assignee shall be in an aggregate principal amount acceptable to the Administrative Agent. If one or more Lenders or Eligible Assignees agree to provide the requested Series of Incremental Term Loans, the Borrower shall give written notice to the Administrative Agent specifying the aggregate amount of the Incremental Term Loans of such Series to be made, at the option amount of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed such Series to be made by each Lender or Eligible Assignee, the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an proposed Incremental Term Loan Agreement; providedEffective Date of such Series of Incremental Term Loans, furtherand the interest rates and fees payable with respect to such Series of Incremental Term Loans, that no Lender which terms shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, included in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and (provided that such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans terms shall be provided under in accordance with this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party2.20), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
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Incremental Term Loans. (a) The Borrower shall have the right At any time and from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request in writing incremental to increase the amount of Initial Term B Loans or any previously established Class of Loans or add one or more additional Classes of term loans in an unlimited principal amount (any such Initial Term B Loans or additional Class of term loans, the “Incremental Term Loans”); provided that (i) be made under the representations and warranties in this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term and the other Loan Agreements. Such notice to the Administrative Agent shall set forth Documents are true and correct in all material respects on the date on which of borrowing of such Incremental Term Loans are requested (except that any representation or warranty made as of a specified date shall only be required to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date true and correct in all material respects as of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)specified date) and include (ii) immediately after giving effect to the applicable completed Incremental Term Loan Agreement for borrowing of such Incremental Term Loans and any substantially concurrent application of the proceeds thereof (x) the Covered Debt Amount shall not exceed the Borrowing Base and (y) the Borrower would be in pro forma compliance with Section 6.07 as an attachment thereto; provided that, notwithstanding anything of the last day of the Borrower’s most recently ended fiscal quarter for which financial statements have been delivered to the contrary contained herein or in any Incremental Term Loan Agreement, such Lenders. Each Facility of Incremental Term Loans (an “Incremental Facility”) shall mature have the same guarantees as, and be secured on a pari passu basis by the Maturity Datesame Collateral securing, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent all of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term obligations under this Agreement and the other Loan pursuant to such request) is required to be obtainedDocuments.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default may participate on a pro rata basis or Event of Default shall exist at the time of the request a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents mandatory repayments or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party)prepayments hereunder, in each case as specified in form the applicable Incremental Facility Amendment, and substance (ii) other than with respect to amortization, pricing or maturity date, shall otherwise have substantially similar terms as the Initial Term B Loans or such other terms as are reasonably satisfactory to the Administrative Agent;, provided that (A) if the Effective Yield with respect to any Incremental Term Loans exceeds the Effective Yield of the Initial Term B Loans by more than 0.50%, then the Applicable Margin relating to the Initial Term B Loans shall be adjusted upwards by an amount equal to such excess minus 0.50%, (B) no Incremental Term Loan shall have a final maturity date earlier than the Maturity Date applicable to the Initial Term B Loans and (C) no Incremental Term Loan shall have a Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans.
(ivc) Each notice from the Borrower pursuant to this Section 2.18 shall set forth the requested amount and, to the extent different than the terms hereunder, proposed terms of the relevant Incremental Term Loans. Any Person providing any Incremental Term Loans, unless a Lender or an Affiliate of a Lender, shall be reasonably acceptable to the Administrative Agent (any such Person being called an “Additional Lender”) and, if not already a Lender, shall have received customary legal opinionsbecome a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, resolutions as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) . Any Incremental Facility Amendment shall not require the consent of any Lenders other than the Additional Lenders with respect to the extent requested by such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Lender making an Loans, unless it so agrees. Commitments in respect of any Incremental Term LoanLoans shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the Borrower shall have executed and delivered Incremental Term Notes consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in favor the reasonable opinion of such Incremental Term Lenders evidencing such Incremental Term Loansthe Administrative Agent, to effect the provisions of this Section 2.18.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (Corporate Capital Trust, Inc.)
Incremental Term Loans. (a) The At any time, the Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $400,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrower may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Consolidated Company Investment not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(C) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating that the Credit Parties will be in compliance on a pro forma basis with the financial covenant set forth in Section 6.1 after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loans pursuant thereto and (3) any Consolidated Company Investment consummated in connection therewith; provided that if such Incremental Term Loans are incurred in connection with a Consolidated Company Investment or an irrevocable redemption or repayment of Indebtedness, compliance with the financial covenant set forth in Section 6.1 may be determined, at the option of the Parent, at the time of signing the request applicable acquisition agreement or at the time date of the making irrevocable notice of the proposed redemption or repayment, as applicable (in which case, such Incremental Term Loans;
Loans will be deemed outstanding for purposes of calculating the maximum amount of Indebtedness that can be incurred under any leverage-based test hereunder); provided further, that if the Parent has made such election, in connection with the calculation of any financial ratio (ii) all conditions precedent for a Borrowing other than the financial covenant set forth in Section 4.02 6.1) on or following such date and prior to the earlier of the date on which such Consolidated Company Investment is consummated or the definitive agreement for such Consolidated Company Investment is terminated or such redemption or repayment is made, as applicable, any such ratio shall be calculated on a Pro Forma Basis assuming such Consolidated Company Investment, redemption or repayment and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been satisfiedconsummated, except to the extent such calculation would result in a lower leverage ratio than would apply if such calculation was made without giving pro forma effect to such Consolidated Company Investment, redemption, repayment, other pro forma events and Indebtedness;
(iiiD) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrower and shall be guaranteed with the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each other Extensions of the parties thereto Credit on a pari passu basis;
(or, F) in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Loan (the terms of which shall be set forth in the relevant Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Joinder Agreement):
Appears in 1 contract
Samples: Credit Agreement (WestRock Co)
Incremental Term Loans. (a) The Borrower shall have the right from time Subject to time during the term of this Agreement, and subject to upon the terms and conditions set forth herein, the Incremental Term Lender severally agrees to make, on the Increase Effective Date, an Incremental Term Loan in this Section 2.17, dollars to request the Parent in writing incremental term loans an amount equal to the commitment amount set forth next to the Incremental Term Lender’s name in Schedule I hereto under the caption “Incremental Term Commitment”; provided that the Incremental Term Loans shall each constitute the same Class of Term Loans under the Credit Agreement as the Initial Term Loans made prior to the date hereof (the “Existing Initial Term Loans”) and shall be fungible with the Existing Initial Term Loans. Except as necessary to give effect to the provisions of clauses (b) through (h) below, the Incremental Term Loans shall be “Loans”, “Term Loans”, “Initial Term Loans” and “Incremental Term Loans”) be made under this ” for all purposes of the Credit Agreement by Incremental Term Lenders pursuant to one or more Incremental Term and the other Loan AgreementsDocuments. Such notice to the Administrative Agent shall set forth the date on which such The Incremental Term Loans are requested to may be made (which shall repaid or prepaid in the same manner as the Initial Term Loans in accordance with the provisions of the Credit Agreement and this Agreement, but once repaid or prepaid may not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedreborrowed.
(b) Any such The proceeds of the Incremental Term Loans shall be madeused to repay outstanding amounts under (a) that certain Senior Secured Bridge to 5Y Notes Credit Agreement, at dated as of October 12, 2022 and (b) that certain Senior Secured Bridge to 7Y Notes Credit Agreement, dated as of October 12, 2022, in each case with the option of Parent and Co-Borrower as borrowers and JPMorgan Chase Bank, N.A., as administrative agent (the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderBridge Facilities”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each aggregate principal amount of the Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Loans made on the Increase Effective Date shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loansbe $350,000,000.
(d) Notwithstanding The Incremental Term Lender shall make the foregoing, no entire Incremental Term Loan Agreement shall become effective and no on the Increase Effective Date by wire transfer of immediately available funds by 12:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Upon satisfaction or waiver of the applicable conditions precedent specified herein, the Administrative Agent will make the Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at available to the time of Borrowers by promptly crediting the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth proceeds so received, in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedlike funds, to an account designated by the extent applicable, by each of the parties thereto (or, Borrowers in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansapplicable borrowing notice.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein and in this Section 2.17the Amended Credit Agreement, each Incremental Term Lender agrees, severally and not jointly, to request make an Incremental Term Loan to the Borrower in writing incremental term loans a single drawing on the Second Amendment Effective Date in the principal amount set forth opposite such Incremental Term Lender’s name on Schedule II hereto (the commitment of each Incremental Term Lender to make such Incremental Term Loan being called its “Incremental Term LoansCommitment”) be made under this Agreement by ). Amounts repaid in respect of Incremental Term Lenders Loans may not be reborrowed.
(b) Except as provided herein, the terms of the Incremental Term Loans shall be identical to those of the Existing Term Loans (giving effect to the amendments provided for in Section 1). In furtherance of the foregoing, pursuant to one Section 2.20 of the Amended Credit Agreement, and effective as of the Second Amendment Effective Date, for all purposes of the Loan Documents, (i) the Incremental Term Commitments shall constitute a Term Commitment Increase established, and the Incremental Term Loans made hereunder shall constitute an increase in the aggregate amount of the Existing Term Loans incurred, in accordance with Section 2.20 of the Amended Credit Agreement, (ii) the Incremental Term Commitments shall be “Commitments” under the Amended Credit Agreement, (iii) the Incremental Term Loans made pursuant to the Incremental Term Commitments shall be “Term Loans” under the Amended Credit Agreement and shall constitute Loans of the same Class as the Existing Term Loans, (iv) Borrowings of the Incremental Term Loans shall constitute “Term Loan Borrowings” under the Amended Credit Agreement, including for purposes of repayments due in respect of Term Loan Borrowings under Section 2.10 of the Amended Credit Agreement, and (v) each Incremental Term Lender shall be a “Lender” and a “Term Lender” under the Amended Credit Agreement, shall be a party to the Amended Credit Agreement as a Lender and a Term Lender, shall have all the rights and obligations of, and benefits accruing to, a Lender and a Term Lender under the Amended Credit Agreement and shall be bound by all agreements, acknowledgements and other obligations of a Lender and a Term Lender. Without limiting the foregoing, the Incremental Term Loans made hereunder shall mature on the Term Maturity Date, shall participate in any mandatory or more voluntary prepayments on a pro rata basis with the Existing Term Loans and, subject to paragraph (c) of this Section, shall bear interest at the rate specified in the Amended Credit Agreement as applicable to the Existing Term Loans.
(c) It is the intent of the parties to this Amendment that all Incremental Term Loans made on the Second Amendment Effective Date be included in each outstanding Borrowing of Existing Term Loans on a pro rata basis. In furtherance of the foregoing, and notwithstanding anything to the contrary in the Existing Credit Agreement, each of the parties hereto agrees that a portion of each Incremental Term Loan Agreements. Such notice shall be allocated to each outstanding Borrowing of Existing Term Loans on a pro rata basis and that the Administrative Agent shall set forth the date on which interest rate applicable to each such Incremental Term Loans are requested Loan allocated to be made (which shall not be less than three (3) Business Days nor more than 60 days after a Eurocurrency Borrowing for the date of such notice (which time periods may be modified or waived at the discretion remainder of the Administrative Agent)existing Interest Period applicable to such Borrowing shall equal the Adjusted LIBO Rate applicable on the Second Amendment Effective Date to the Existing Term Loans included in such Borrowing plus the Applicable Rate. Subject to the proviso to Section 2.13(d) and include of the applicable completed Incremental Term Loan Agreement for such Existing Credit Agreement, accrued interest on the portion of the Incremental Term Loans as an attachment theretoincluded in each Borrowing of the Existing Term Loans pursuant to this paragraph (c) shall be payable in arrears on each Interest Payment Date applicable to such Borrowing; provided that, notwithstanding anything to the contrary contained herein above, any conversion or in continuation of any Incremental Borrowing of Term Loan Agreement, such Loans (including the Incremental Term Loans included therein), and the election of any Interest Period therefor, occurring prior to the end of any existing Interest Period applicable to such Borrowing as of the Second Amendment Effective Date shall mature be allocated ratably among the Lenders holding all Term Loans (including the Incremental Term Loans) included in such Borrowing. It is acknowledged and agreed that each payment of interest on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, Term Loans (including the consent of the Administrative Agent Incremental Term Loans) shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to allocated by the Administrative Agent among the Existing Term Lenders and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery Lenders in a manner that reflects the actual number of an days of interest accrued on the outstanding principal amount of the Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver Loans compared to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as actual number of days of interest accrued on the Administrative Agent shall reasonably specify to provide for outstanding principal amount of the requested Incremental Existing Term Loans.
(d) Notwithstanding The funding of the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans to be made hereunder shall be provided under this made in the manner contemplated by Section 2.17 unless:2.06 of the Credit Agreement. Unless previously terminated, the Incremental Term Commitments shall terminate at 5:00 p.m., New York City time, on the Second Amendment Effective Date.
(ie) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed The Administrative Agent hereby consents to this Amendment and confirms that each Incremental Term Loans;
(ii) all conditions precedent for Lender not already a Borrowing set forth in Section 4.02 have been satisfied;
(iii) Lender under the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Existing Credit Agreement immediately prior to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Second Amendment Effective Date is acceptable to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
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Incremental Term Loans. (a) The Borrower shall have the right from From time to time (but no more than two times, including the frequency of the request for any Revolver Increase), the Company may, upon notice to the Agent (which shall promptly provide a copy of such notice to the Banks), on one or more occasions during the term of this Agreement, and subject period from the Closing Date until the date one (1) year prior to the terms and conditions set forth in this Section 2.17Maturity Date, to request in writing incremental term loans (the “Incremental Term Loans”) of up to an aggregate amount of $50,000,000 less the aggregate amount of Revolver Increases pursuant to Section 2.6; provided that the minimum amount of each Incremental Term Loan shall be made under $15,000,000. Each Bank party to this Agreement at such time shall have the right (but no obligation), for a period of 15 days following receipt of such notice, to elect by notice to the Company and the Agent to provide a portion of any such Incremental Term Loan. Any Bank not responding within fifteen (15) days of receipt of such notice shall be deemed to have declined to provide a portion of any such Incremental Term Loan.
(b) If any Bank party to this Agreement shall not elect to provide a portion of any such Incremental Term Loan pursuant to subsection (a) of this Section, the Company may, within 10 days of the Banks’ response, designate one or more of the existing Banks or other financial institutions reasonably acceptable to the Agent and the Company which at the time agree to (i) in the case of any such lender that is an existing Bank, provide a portion of any such Incremental Term Loan and (ii) in the case of any other such lender (an “Additional Bank”), become a party to this Agreement by Incremental Term Lenders pursuant to one or more providing a portion of any such Incremental Term Loan Agreements. Such notice of not less than $10,000,000 pursuant to the Administrative Agent shall terms set forth in clause (c) below; provided (x) no existing Banks shall have any obligation to provide all or any portion of any such Incremental Term Loan and (y) such other banks, financial institutions and investment funds that are not existing Banks shall enter into such joinder agreements to give effect thereto as the date Agent and the Company may reasonably request. The Agent is authorized to enter into, on which behalf of the Banks, any amendment to this Agreement or any other Loan Document consistent with this Section 2.15 as may be necessary to incorporate the terms of any Incremental Term Loan. The sum of the aggregate amount of Revolver Increases pursuant to Section 2.6, plus the amount of any Incremental Term Facility made pursuant to this Section 2.15 shall not in the aggregate exceed $50,000,000.
(c) The following terms and conditions shall apply to all Incremental Term Loans: (i) any such Incremental Term Loans are requested to be made shall constitute Obligations, (which shall not be less than three (3ii) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans shall have the terms as an attachment thereto; determined by the Agent and the Company, provided thatthe interest rate shall be the same as the interest rate for Revolving Loans hereunder, notwithstanding anything (iii) any such Incremental Term Loan shall be entitled to the contrary contained herein or in same voting rights as the Revolving Commitments and/or Revolving Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Loans, (iv) any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with (v) any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such requestshall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth in this Section 2.15, (vi) is required to be obtained.
(b) Any any such Incremental Term Loans Loan which is an Alternate Base Rate Loan shall be made, at the option in a minimum principal Dollar Amount of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender ($1,000,000 and integral multiples of $100,000 in excess thereof and any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that Loan which is a LIBO Rate Loan shall be in a minimum principal Dollar of $2,000,000 and in integral multiples of $500,000 in excess thereof, (vii) the proceeds of any such non-existing Lender or financial institution Incremental Term Loan will be used in accordance with Section 4.19, and (viii) the Company shall deliver to the Agent (A) must an agreement in form and substance satisfactory to the Agent signed by the Company, by each Additional Bank and by each other Bank who will make such Incremental Term Loan, setting forth the new Commitments of such Banks and setting forth the agreement of each Additional Bank to become a party to this Agreement and to be an Eligible Assigneebound by all the terms and provisions hereof, (B) must have an a Term Note duly executed by the Company, equal in principal amount to the respective amounts of the Commitments of the Additional Banks and the Banks that made such Incremental Term Loan of at least $5,000,000 unless otherwise agreed to if so requested by the Administrative Agent and the Borrower and such Bank; (C) must become an Incremental Term Lender under this Agreement by execution and delivery such evidence of an appropriate corporate authorization on the part of the Company with respect to the Incremental Term Loan Agreement; provided, further, that no Lender shall be required and such opinions of counsel for the Company with respect to become an Incremental Term Lender and any Lender or financial institution approached to provide an the Incremental Term Loan as the Agent may elect or decline, in its sole discretion, reasonably request; (D) payment of any applicable fee related to provide such Incremental Term Loan.
Loan (cincluding, without limitation, any applicable arrangement, upfront and/or administrative fee) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to (E) such request shall execute and deliver to evidence of the Administrative Agent an Incremental Term Loan Agreement and such other documentation satisfaction of the following conditions set forth in subsection (d) below as the Administrative Agent shall may reasonably specify to provide for the requested Incremental Term Loansrequest.
(d) Notwithstanding the foregoing, no Any Incremental Term Loan Agreement shall become effective and no Incremental Term Loans made pursuant to this Section 2.15 shall be provided under this Section 2.17 unlesssubject to satisfaction of the following conditions:
(i) before and after giving effect to such Incremental Term Loan, all representations and warranties contained in Article IV shall be true;
(ii) at the time of the making of such Incremental Term Loan, no Default or Event of Default shall exist at the have occurred and be continuing or would result from such increase, and no event shall have occurred and be continuing that with notice or lapse of time or both would constitute a Default or an Event of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;Default; and
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant after giving effect to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered aggregate amount of all Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans made pursuant to this Section 2.15 and all Revolver Increases made pursuant to this Section 2.6 shall not exceed $50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Universal Health Realty Income Trust)
Incremental Term Loans. In addition to Borrowings of Revolving Credit Loans, Tranche 1 Loans, Tranche 2 Loans and Tranche 3 Loans pursuant to Section 2.01(a), (ab), (c) The Borrower shall have the right or (d) above, respectively, from time to time during time, GEO may request that any one or more of the term Lenders or, at the option of this AgreementGEO, and subject other financial institutions or funds selected by GEO offer to the terms and conditions set forth in this Section 2.17, enter into commitments to request in writing incremental make additional term loans (the “Incremental Term Loans”) be made under this Agreement by to GEO, in Dollars, in an aggregate principal amount not to exceed the sum of (i) the Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Fixed Amount plus (ii) so long as the First Lien Leverage Ratio after giving effect to the Administrative Agent shall set forth the date on which incurrence of such Incremental Term Loans are requested to be made (which shall and the use of proceeds therefrom) on a Pro Forma Basis does not be less than three (3) Business Days nor more than 60 days after exceed 1.75:1.00, the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeRatio Amount. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) event that one or more existing of the Lenders and/or (y) one or more such other financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or declinefunds offer, in its their sole discretion, to provide enter into such commitments, and such Lenders or financial institutions or funds and GEO agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by GEO in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed Loans under this Agreement in an amount equal to provide an the amount of their respective Incremental Term Loan Commitments (and such financial institutions shall become “Incremental Lenders” hereunder). The Incremental Term Loans to be made pursuant to any such agreement between GEO and any such Incremental Lenders in response to any such request by GEO shall execute and deliver be deemed to be a separate “Series” of Incremental Term Loans hereunder for all purposes of this Agreement. Anything herein to the Administrative Agent an contrary notwithstanding:
(1) the minimum aggregate principal amount of Incremental Term Loan Agreement and Commitments entered into pursuant to any such other documentation as request (and, accordingly, the Administrative Agent shall reasonably specify to provide for the requested minimum aggregate principal amount of any Series of Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iA) no Default $20,000,000 or Event a larger multiple of Default shall exist at the time of the request $1,000,000 or at the time of the making of the proposed Incremental Term Loans;
(iiB) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant any other amount consented to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv2) the Administrative Agent Incremental Term Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Loan hereunder (other than any outstanding Tranche 3 Loans);
(3) except as otherwise expressly provided herein, the Incremental Term Loans of any Series shall have received customary legal opinionsthe interest rate and upfront, resolutions and closing certificates participation and other documentation fees as it shall reasonably request, in each case in form be agreed upon by GEO and substance reasonably satisfactory to the Administrative Agent; andapplicable Incremental Lenders;
(v4) to the extent requested by any Incremental Term Lender making an Loans of any Series shall (i) have the commitment reduction schedule (if any), amortization and maturity date as shall be agreed upon by GEO and the applicable Incremental Lenders; provided that (A) the maturity for such Series of Incremental Term Loan, Loans shall not be earlier than the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.latest Maturity Date,
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, Administrative Agent elect to request the establishment of one or more additional Classes of Term Loans (or increases to existing Classes of Term Loans as provided in writing incremental term loans the proviso to clause (the b) below), denominated in dollars under this Agreement (“Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements). Such Each such notice to the Administrative Agent shall set forth specify the date (each, an “Incremental Effective Date”) on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at Borrower proposes that the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at which shall be a date not less than five Business Days after the option date on which such notice is delivered to the Administrative Agent (or such shorter period as agreed by the Administrative Agent); provided that:
(i) before and after giving effect to the borrowing of such Incremental Term Loans on the BorrowerIncremental Effective Date no Event of Default shall have occurred and be continuing (or, by to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other Acquisition, no Specified Default shall have occurred and be continuing);
(ii) except in the case of (x) one or more existing Lenders and/or Extendable Bridge Loans and (y) one Indebtedness in an aggregate principal amount not in excess of the then available amount under the Inside Maturity Basket, the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B-67 Loans outstanding at the time of such borrowing;
(iii) all other terms applicable to such Incremental Term Loans (other than provisions relating to original issue discount, upfront fees and interest rates, amortization (other than the Maturity Date and subject to clause (ii) above), optional prepayments or more redemption terms, in each case, which shall be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Term Loans subject to the proviso contained in the definition of Applicable Margin), shall be on market terms (as determined by the Borrower); provided that, in the event any financial institutions maintenance covenant is included, which is applicable to any Incremental Term Loans, either (x) such financial maintenance covenant does not apply until the Term B-67 Loans have been repaid in full or (y) such financial maintenance covenant shall also apply to the Term B-67 Loans;
(iv) the aggregate principal amount of Incremental Term Loans (other than Refinancing Term Loans) borrowed following the ClosingAmendment No. 11 Effective Date, when aggregated with the principal amount of Qualifying Secured Debt and Qualifying Other Debt issued pursuant to clause (v)(ii) of the definition of “Permitted Indebtedness,” would not exceed the Maximum Incremental Amount;
(v) the representations and warranties in this Agreement and the other Loan Documents shall be accurate in all material respects as of the Incremental Effective date (except to the extent that is not an existing Lender (any such representation or warranty relates to a prior date), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other similar Permitted Investments; and
(vi) the Loan Parties and the Collateral Agent shall enter into such amendments to the Security Documents as may be reasonably requested by the Collateral Agent (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement and which may be provided on a post-closing basis) in order to ensure that the Incremental Term Loans are provided with the benefit of the applicable Security Documents and shall deliver such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Collateral Agent.
(b) The Borrower may approach any Lender or financial institution referred any other Person that would be an Eligible Assignee to in this Section 2.17(b) being called an provide all or a portion of the Incremental Term Loans (a “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Incremental Effective Date shall be designated a series (a “Series”) of Incremental Term Loans for all purposes of this Agreement; provided that, subject to the limitations set forth in clause (a) above, any Incremental Term Loans may, to the extent provided in the applicable Incremental Term Loan Amendment, be designated as an increase in any previously established Class of Term Loans.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under established pursuant to an amendment to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Agreement among the time of Borrower, the request or at Administrative Agent and the time of the making of the proposed Incremental Term Loans;
Lenders providing such Incremental Term Loans (iian “Incremental Term Loan Amendment”) all conditions precedent for a Borrowing which shall be consistent with the provisions set forth in Section 4.02 have been satisfied;
clause (iiia) above (but which shall not require the Borrower shall have consent of any other Lender other than those consents provided pursuant this Agreement). Each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Amendment shall be binding on the Lenders, the Loan Parties and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the other parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanshereto.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower may on or prior to the date that is 10 Business Days prior to September 15, 2018, by written notice (each, an “Incremental Request”) to the Administrative Agent (whereupon the Administrative Agent shall have promptly make such notice available to each of the right Lenders), request from time to time during the establishment of one or more new term of this Agreementloan commitments (each, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the an “Incremental Term LoansCommitment”) be made under this Agreement by in an aggregate amount not to exceed the Incremental Amount from Lenders or additional banks, financial institutions or other institutional lenders subject to compliance with, and as provided for in, clauses (b)(ii) and (d) below. Each such notice shall specify (i) the amount of the Incremental Term Lenders pursuant Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to one or more the remaining Incremental Amount), and (ii) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Term Loan Agreements. Such notice Commitments shall be effective, which shall be a date on or prior to the Administrative Agent shall set forth September 15, 2018 but not less than 10 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such The requested Incremental Term Loans Commitments shall be made, at the option become effective as of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)applicable Increase Effective Date; provided that any such non-existing Lender or financial institution that:
(Ai) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required obligated to become an provide any Incremental Term Lender Commitment unless it shall have separately agreed to do so, and any Lender or financial institution approached the determination to provide an such commitments shall be within the sole and absolute discretion of such Lender;
(ii) the creation or provision of any Incremental Term Commitment or Incremental Term Loan may elect or decline, shall require the approval of each Initial Lender in its sole discretion, discretion (which approval shall be separate and distinct from such Lender’s discretionary right to agree to provide any portion of any Incremental Term Commitment and any such approval of the Borrower’s incurrence of any Incremental Term Commitment shall not, in and of itself, require or imply that such Lender agrees to provide any portion of such Incremental Term Loan.Commitment);
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall have occurred and be continuing or would exist at after giving effect to such Incremental Term Commitments;
(iv) after giving effect to such Incremental Term Commitments, the time representations and warranties of the request or at Loan Parties set forth in this Agreement and the time other Loan Documents shall be true and correct in all material respects (without duplication of materiality qualifiers set forth in such representations and warranties) on and as of the making Increase Effective Date with the same effect as though such representations and warranties had been made on and as of such; provided that to the extent that a 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 period, as the case may be; and
(v) if requested by the Initial Lenders, the Lenders shall have received an opinion or opinions of counsel for the Loan Parties, dated the Increase Effective Date and addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Initial Lenders.
(c) The terms and provisions of the proposed Incremental Term Loans made pursuant to Incremental Term Commitments shall be as follows:
(i) except as otherwise set forth herein or in the Increase Joinder, identical to the Loans (it being understood that Incremental Term Loans may be a part of the Loans) except as to maturity and amortization (which shall be subject to the following clauses (ii) and (iii));
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;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 then existing Loans; and
(iii) the Borrower shall have provided maturity date of Incremental Term Loans (the “Incremental Term Loan Cash Collateral as required pursuant Maturity Date”) shall not be earlier than the Maturity Date of the Loans then in effect.
(d) Incremental Term Commitments may be provided by any Lender or any other Person (such other Person, an “Additional Lender”); provided that, each Initial Lender (in its sole discretion) shall have consented to such Additional Lender’s providing such Incremental Term Commitments; provided, that (subject to Section 6.10 hereof and 2.6(b)(ii)) the Administrative Agent opportunity to commit to provide all or a portion of any Incremental Term Commitments shall have received copies of be offered by the Collateral Documents or any amendments thereto that Borrower first to the Administrative Agent shall deem reasonably necessary, signedInitial Lenders (to the extent they remain Lenders at such time) on a pro rata basis and, to the extent any of such existing Initial Lenders have not agreed or declined to provide any portion of such Incremental Term Commitments, after being provided a bona fide opportunity to do so, the other existing Lenders shall be provided an opportunity to provide all or any portion of such declined portion and to the extent any portion of the Incremental Term Commitments are not accepted by the then-existing Lenders, the Borrower may then offer such opportunity to Additional Lenders.
(e) The Incremental Term Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrower, each other Loan Party, the Administrative Agent, each Initial Lender (in its sole discretion) and, if applicable, by each Additional Lender providing all or any portion of the parties thereto (orsuch Incremental Term Commitments, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to each of them; provided that, in the Administrative Agent;
(iv) event the Administrative Agent shall not have received customary legal opinionsa fully executed Increase Joinder on or before the earlier of (x) the date that is 30 Business Days after the date on which the associated Incremental Request was delivered to Administrative Agent and (y) September 15, resolutions and closing certificates and other documentation as it 2018, then such Incremental Request shall reasonably requestbe deemed to have been revoked (unless otherwise agreed by the Initial Lenders in their sole discretion). In addition, unless otherwise specifically provided herein or the applicable Increase Joinder, all references in each case in form and substance reasonably satisfactory Loan Documents to the Administrative Agent; andLoans shall be deemed, unless the context otherwise requires, to include references to Incremental Term Loans made pursuant to Incremental Term Commitments made pursuant to this Agreement.
(vf) Unless otherwise agreed in the applicable Increase Joinder, on any Increase Effective Date on which new Commitments for Loans are effective, subject to the extent requested by any satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a Loan to the Borrower in an amount equal to its new Commitment.
(g) The Incremental Term Lender making an Loans and Commitments established pursuant to this Section 2.6 shall constitute a part of the “Loan” and “Commitments” under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty hereunder and the security interests created by the Collateral Documents. The Loan Parties shall take any actions reasonably required by the Lenders to ensure and/or demonstrate that the Guaranty made hereunder and the Lien and security interests granted hereby and by the other Collateral Documents continue to be valid and perfected under the UCC after giving effect to the establishment of any such class of Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of Loans or any such Incremental Term Lenders evidencing such Incremental Term Loansnew Commitments.
Appears in 1 contract
Samples: Credit Agreement (Teligent, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right and any one or more Lenders (including New Lenders) may from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental agree that such Lenders shall make new term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) executing and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver delivering to the Administrative Agent an Incremental Term Loan Agreement and Activation Notice specifying (i) the aggregate amount of such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
, (dii) the proposed Incremental Term Loan Closing Date, which shall be a Business Day, and (iii) the Incremental Term Loan Maturity Date and the Applicable Margin for such Incremental Term Loans, which shall comply with Section 2.14(c) below. Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no without the consent of the Required Lenders, the aggregate original principal amount of all Incremental Term Loans after the Closing Date shall be provided under this Section 2.17 unless:not exceed $30,000,000. Each Term A Lender and Term B Lender shall have the right to participate in its pro rata share of any Incremental Term Loans (based on the aggregate amount of such Lenders’ Term Loans A and Term Loans B), but no Lender shall have any obligation to participate in any Incremental Term Loans unless it agrees to do so in its sole discretion.
(ib) no Default Any additional bank, financial institution or Event of Default shall exist at other entity which, with the time consent of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart consent shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partybe unreasonably withheld), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.elects
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Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementmay, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent shall set forth on up to four (4) occasions during the period from the Closing Date to the date on that is 30 days prior to the Facility Termination Date, enter into one or more tranches of incremental term loans (each an “Incremental Term Loan”) in each case in minimum increments of $25,000,000, and in an amount not to exceed the aggregate amount of $100,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide all or any applicable portion of such Incremental Term Loans are requested to be made (which Loans, each in their own discretion. The Administrative Agent and/or its Affiliates shall not be less than three (3) Business Days nor more than 60 days after use commercially reasonable efforts, with the date of such notice (which time periods may be modified or waived at the discretion assistance of the Administrative Agent)) and include Borrower, to arrange a syndicate of Lenders willing to hold the applicable completed requested Incremental Term Loan Agreement for Loans. If Lenders are willing to provide such Incremental Term Loans as an attachment thereto; provided thatLoans, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection may be made with any such request, the consent of only the Borrower, the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any and each new or existing Lender providing an all or any applicable portion of such Incremental Term Loan so long as the aggregate outstanding principal amount of all Loans (including all Incremental Tem Loans) does not exceed $365,000,000 less any voluntary reductions of the Commitments after the Closing Date pursuant to such request) is required Section 2.07(a). Nothing in this Section 2.16 shall constitute or be deemed to be obtained.
(b) Any such constitute an agreement by any Lender to provide Incremental Term Loans. Such Incremental Term Loans shall be made, at evidenced by the option execution and delivery of an Amendment Regarding Incremental Term Loans in the form of Exhibit B attached hereto by the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (Cnew Lender(s) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide existing Lender(s) providing such Incremental Term Loan.
(c) The Borrower and , a copy of which shall be forwarded to each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to by the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) promptly after execution thereof. Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.16 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Responsible Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivii) the Administrative Agent shall have received customary legal opinionsa certificate of a Responsible Officer of the Borrower as to the board resolutions evidencing authority for such Incremental Term Loan and as to any changes to the formation documents of the Borrower since the Closing Date, resolutions and closing certificates (iii) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 after giving effect to the Incremental Term Loans to be made on such date and the application of the proceeds therefrom as if made and applied on such date. The Incremental Term Loans (i) shall rank pari passu in right of payment with the other documentation Loans, (ii) shall not mature earlier than the Facility Termination Date (but may have amortization prior to such date) and (iii) shall be treated substantially the same as it shall reasonably request(and in any event no more favorably than) the other Loans. The Amendment Regarding Incremental Term Loan may, without the consent of any other Lenders (except as expressly required pursuant to Section 10.01), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in each the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.16 and such Amendment Regarding Incremental Term Loan may, if applicable, include provisions that are agreed to by Borrower and Administrative Agent with respect to remedial rights under this Agreement to ensure that the existing Loans shall not be materially adversely affected by such Incremental Term Loans. In connection with any Incremental Term Loans pursuant to this Section 2.16, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case in form and substance reasonably satisfactory of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent; and
(v) , its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to the extent requested by any Incremental Term Lender making an Incremental Term Loancomply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansAct.
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Incremental Term Loans. (a) The Borrower shall have the right from time Each Lender of Term Loans severally agrees to time during the term of this Agreement, and subject consider lending to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to Company on one or more Incremental dates prior to the Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Maturity Date Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as in an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant aggregate principal amount equal to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option Lender’s Pro Rata Share of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)$75,000,000; provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeNOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE CONTRARY, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan AgreementNO LENDER SHALL BE OBLIGATED UNDER ANY CIRCUMSTANCES TO MAKE AN INCREMENTAL TERM LOAN HEREUNDER OTHER THAN IN SUCH LENDER’S SOLE AND ABSOLUTE DISCRETION; provided, further, that no (I) if, following the delivery by Company of a Notice of Interest pursuant to subsection 2.1B, any Lender shall be required decline to become an Incremental Term Lender and any Lender or financial institution approached lend to provide Company an Incremental Term Loan may elect or declinein a principal amount equal to such Lender’s Pro Rata Share of the requested Incremental Term Loans, and Company has obtained a commitment from an Eligible Assignee to assume such declining Lender’s obligations hereunder in its sole discretion, to provide respect of such declined portion of such requested Incremental Term Loan.
(c) The Borrower and each Incremental Term , then Company may require such declining Lender that has agreed to provide an assign to such Eligible Assignee such declining Lender’s obligations hereunder in respect of such declined portion of such requested Incremental Term Loan pursuant to such request shall execute the provisions of subsection 10.1B, (II) the pricing, fees and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no terms in respect of Incremental Term Loans borrowed by Company after the 6-month anniversary of the Closing Date (it being understood that on or prior to the 6-month anniversary of the Closing Date such pricing, fees and terms shall be governed by this Agreement) shall be subject to the further agreement of Company and the Lenders of said Incremental Term Loans (including any such Eligible Assignees), provided that the agreement of any such declining Lenders shall not be required under this Section 2.17 unless:
clause (iII) no Default if such Incremental Term Loans (A) have a final maturity date on or Event of Default shall exist at after the time Term Loan Maturity Date and (B) have a weighted average life not less than the then-current weighted average life of the request or at outstanding Closing Date Term Loans and (III) if Company and such Lenders agree to the time terms of any such Incremental Term Loans to be borrowed after the 6-month anniversary of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Closing Date, Company, Administrative Agent and the Administrative Agent Lenders shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, enter into an amendment to the extent applicable, by each of the parties thereto (orthis Agreement, in the case of any party as to which an executed counterpart shall not have been receivedform, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form scope and substance reasonably satisfactory to the Administrative Agent;
(iveach of them, to provide for such terms. Amounts borrowed under this subsection 2.1A(i)(b) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanssubsequently repaid or prepaid may not be reborrowed.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementright, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such upon at least ten Business Days’ prior written notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested Agent, to be made add a new tranche of single-draw loans (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderSingle-Draw Loan”); , provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unlessthat:
(i) the aggregate principal amount of the Incremental Single-Draw Loan shall not exceed $50 million;
(ii) no Default or Event of Default shall exist at on the time effective date of the request Incremental Single-Draw Loan or at would exist after giving effect to the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfiedSingle-Draw Loan;
(iii) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(iv) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(v) the aggregate amount of the Incremental Single-Draw Loan shall be made available to the Borrower shall have provided in a single advance on the effective date of the Incremental Term Single-Draw Loan Cash Collateral as required pursuant to Section 6.10 hereof and any amounts repaid on the Administrative Incremental Single-Draw Loan may not be reborrowed;
(vi) The Agent shall have received copies of the Collateral Documents all certificates, documents or any amendments thereto that the Administrative Agent shall deem other evidence it may reasonably necessary, signed, request relating to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication corporate or other written confirmation from such party of execution of a counterpart thereof by such party)necessary authority or consents for the Incremental Single-Draw Loan and any other matters relevant thereto, in each case all in form and substance reasonably satisfactory to the Administrative Agent;
(ivvii) The Borrower shall deliver to the Agent a certificate of the Borrower dated as of the effective date of the Incremental Single-Draw Loan signed by an Executive Officer of the Borrower certifying that, before and after giving effect to the Incremental Single-Draw Loan, (i) the Administrative representations and warranties set forth in Section 6, subject to the limitations set forth therein, be true and correct in all material respects as of such date, other than those representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct to such extent in all respects as of such applicable date), and (ii) no Default or Event of Default exists; and
(viii) the Agent shall have received customary legal opinions, resolutions documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and closing certificates and other documentation as it shall reasonably request, in each case its obligations under this Credit Agreement in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(ix) the final maturity date for the Incremental Single-Draw Loan shall not be earlier than the Single-Draw Maturity Date;
(x) the weighted average life to maturity for the Incremental Single-Draw Loan shall not be shorter than the then remaining weighted average life of the Single-Draw Loan; and
(vxi) the all in yield (whether in the form of interest rate margins, original issue discount, upfront fees or an adjusted Eurodollar Rate or Base Rate floor (but excluding any arrangement or underwriting fees paid to arrangers for their own account), with such increased amount being equated to interest margin for purposes of determining any increase to the extent requested by any applicable interest margin with respect to the Single-Draw Loan) applicable to the Incremental Term Lender making an Incremental Term Single-Draw Loan will not be more than 0.25% higher than the corresponding all in yield (after giving effect to interest rate margins (including the adjusted Eurodollar Rate and Base Rate floors), original issue discount and upfront fees) for the Single-Draw Loan, unless the interest rate margins with respect to the Single-Draw Loan are increased by an amount equal to the difference between the all in yield with respect to the Incremental Single-Draw Loan and the corresponding all in yield on any the Single-Draw Loan minus 0.25%;
(xii) subject to the foregoing clauses, the interest rate margins, final maturity date and weighted average life to maturity applicable to the Incremental Single-Draw Loan shall be determined by the Borrower and the Lenders providing the Incremental Single-Draw Loan.
(b) The Incremental Facility Commitments and loans thereunder shall have executed constitute Commitments and delivered Loans under, and shall be entitled to all the benefits afforded by, this Credit Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by this Credit Agreement, the Pledge Agreement and the other Credit Documents.
(c) Notwithstanding anything to the contrary herein, the Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of the Incremental Term Notes in favor Single-Draw Loan herein or therein, including without limitation, amendments to the definitions of “Commitments”, “Loans” and “Required Lenders” or other provisions relating to voting provisions to provide the Lenders providing the Incremental Facility Commitments with the benefit of such Incremental Term Lenders evidencing such Incremental Term Loansprovisions.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this AgreementEach Incremental Term Lender agrees, severally and subject to the terms and conditions set forth in this Section 2.17not jointly, to request in writing incremental term loans make an Incremental Term Loan (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall Borrower on the Amendment Effective Date in an aggregate principal amount equal to the amount set forth the date on which opposite such Incremental Term Loans are requested to be made Lender’s name on Schedule I hereto (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement amount for such Incremental Term Loans Lender, its “Incremental Term Commitment” and all such amounts for all Incremental Term Lenders, collectively, the “Incremental Term Commitments”), on the terms set forth herein and in the Credit Agreement (as an attachment thereto; provided that, notwithstanding anything amended hereby) and subject to the contrary contained herein or in any Incremental Term Loan Agreement, such conditions set forth herein. The proceeds of the Incremental Term Loans shall mature on be used by the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, Borrower for the consent of purposes set forth in the Administrative Agent shall be required (such consent not recitals to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedthis Amendment.
(b) Any such The Incremental Term Loans shall constitute, and be madeconsidered to be part of, at the option same Class of Term Loans as the Initial Term Loans for all purposes of the BorrowerLoan Documents and shall be treated the same, by on the exact same terms (xincluding with respect to interest rates and Section 2.11 of the Credit Agreement) one or more existing Lenders and/or and pursuant to the exact same documentation, as the Initial Term Loans under the Credit Agreement and the other Loan Documents. On and after the Amendment Effective Date, (yi) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred each reference in the Loan Documents to in this Section 2.17(b) being called an the “Term Commitments” and the “Commitments” shall be deemed to include and be a reference to the Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeCommitments, (Bii) must have an each reference in the Loan Documents to the “Term Loans” and the “Loans” shall be deemed to include and be a reference to the Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower Loans and (Ciii) must become an each reference in the Loan Documents to the “Term Lenders” or the “Lenders” shall be deemed to include and be a reference to the Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanLenders.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loans shall be made as a single borrowing on the Amendment Effective Date. Amounts repaid or prepaid in respect of the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Loans may not be reborrowed. Each Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Lender’s Incremental Term LoansCommitment shall terminate automatically upon the funding of such Incremental Term Lender’s Incremental Term Loans on the Amendment Effective Date.
(d) Notwithstanding The Term Maturity Date for the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:the Term Maturity Date for the Initial Term Loans. The Incremental Term Loans shall have an initial Interest Period that commences on the Amendment Effective Date and ends on the last day of the Interest Period then in effect for the Initial Term Loans immediately prior to the Amendment Effective Date.
(ie) no Default or Event Each scheduled amortization payment required to be made pursuant to the first sentence of Default shall exist at the time Section 2.10(a)(i) of the request or at Credit Agreement after the time Amendment Effective Date shall be adjusted from and after the Amendment Effective Date as follows in order to provide for the “fungibility” for all commercial purposes of the making of the proposed Incremental Term Loans with the existing Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) . From and after the Borrower shall have provided Incremental Term Loan Cash Collateral as required Amendment Effective Date, subject to adjustment by the application of any prepayment pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies 2.10(c) or Section 2.11 of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term LoanCredit Agreement, the Borrower shall have executed repay the aggregate outstanding principal amount of the Initial Term Loans and delivered the Incremental Term Notes Loans in favor equal quarterly installments on the last day of each March, June, September and December (commencing on December 31, 2020) in an amount for each such installment equal to $526,332.49.
(f) This Amendment shall satisfy the requirements of Section 2.20(a) of the Credit Agreement regarding the delivery of a request with respect to the Incremental Term Lenders evidencing such Incremental Term LoansLoans contemplated by this Amendment.
Appears in 1 contract
Samples: Credit Agreement (Zix Corp)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Loan Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Loan Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Loan Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.22 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
paragraphs (iiib) the Borrower and (c) of Article IV shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower, signed, to the extent applicable, by each of the parties thereto and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary (with sufficient copies for each of the Incremental Term Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Article IV.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes in favor Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of such Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Lenders evidencing Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term LoansLoan Assumption Agreement.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may by written notice to the right from time Agent, up to time four (4) times during the term of this Agreement, and subject elect to the terms and conditions set forth in this Section 2.17, to request in writing incremental establish one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”), in an aggregate amount equal to $200,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental on which the New Term Loan Agreements. Such notice to the Administrative Agent Commitments shall set forth be effective, which shall be a date not less than 5 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made the Agent, (which shall not be less than three (3B) Business Days nor more than 60 days after the date amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as Commitments, which must be at least $25,000,000, and (C) the identity of each Lender or other Person that is an attachment thereto; provided thatEligible Assignee (each, notwithstanding anything to the contrary contained herein or in any Incremental a “New Term Loan Agreement, Lender”) to whom such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental New Term Loan pursuant to Commitments be allocated and the amounts of such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)allocations; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that, both before and after giving effect to such request shall execute and deliver to the Administrative Agent an Incremental New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
Commitments (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i1) no Default or Event of Default shall exist at the time of the request on such Increase Amount Date before or at the time of after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of the proposed Incremental any New Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 have 5.2 shall be satisfied; (3) the Borrower and the Parent shall be in pro forma compliance with the covenants set forth in Section 9.1 as of the last day of the most recently ended fiscal quarter for which a Compliance Certificate has been satisfied;
delivered after giving effect to such New Term Loan Commitments; (iii4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall have provided Incremental deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. On any Increased Amount Date on which any New Term Loan Cash Collateral as required pursuant Commitments are effective, subject to Section 6.10 hereof the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Administrative New Term Loans made pursuant thereto. The Agent shall have received copies notify Lenders promptly upon receipt of the Collateral Documents or any amendments thereto that Borrower’s notice of each Increased Amount Date and in respect thereof the Administrative Agent New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments shall deem reasonably necessary, signed, be identical to the extent applicableexisting Term Loans. In any event, the upfront fees applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Loan Documents as may be necessary or appropriate, in the case opinion of any party as the Agent to which an executed counterpart shall not have been received, receipt by effect the Administrative Agent provision of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.9.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Incremental Term Loans. Incremental Term Loan Facilities and Incremental Term Loans may be made hereunder pursuant to a supplement, an amendment or an amendment and restatement (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the an “Incremental Term LoansLoan Facility Amendment”) be made under of this Credit Agreement and, as appropriate, the other Credit Documents, executed by Incremental Term Lenders pursuant to one or more the Borrower, each Incremental Term Loan AgreementsLender (including any New Term Loan Lender) with respect to such Incremental Term Loan Facility and the Administrative Agent. Such notice Notwithstanding anything to the contrary in Section 11.6, the Incremental Term Loan Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.7. Each Incremental Term Loan Facility and the related Incremental Term Loans will be on such terms (including as to amortization and maturity) as are agreed to by the Borrowers and each Incremental Term Loan Lender with respect to such Incremental Term Loan Facility and, if the terms of such Incremental Term Loan Facility and the related Incremental Term Loans (other than final maturity) are not the same as any then existing Term Facility, such terms shall be reasonably acceptable to the Administrative Agent shall set forth the date on which and each Incremental Term Loan Lender, but such Incremental Term Loans are requested to be made (which shall will not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on event have a maturity date earlier than the latest Maturity Date, shall not require Date (including any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent extension option) of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedthen existing Facility.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Brandywine Operating Partnership, L.P.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) Business Days 10 days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatnotice, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower Agent), and (Ciii) must become an Incremental Term Lender under this Agreement by execution and delivery of an whether such Incremental Term Loan Agreement; providedCommitments are commitments to make additional Extended Term Loans or commitments to make term loans with terms different from the Extended Term Loans, further, that no Lender shall be required to become an Incremental including Other Term Lender and any Lender or financial institution approached to provide an Incremental A Loans (“Other Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanLoans”).
(cb) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans (other than any Other Term A Loans) shall be no earlier than the Extended Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans (other than any Other Term A Loans) shall be no shorter than the average life to maturity of the Extended Term Loans and (iii) if the initial yield (excluding upfront or arrangement fees payable to the arranger, if any, of such loan) on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same (as opposed to the arranger, if any, thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (1) the margin then in effect for Eurodollar Term Loans of any Class (other than Other Term A Loans) (which shall be the sum of the Applicable Percentage for Eurodollar Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) plus (2) the OID (if any) initially paid in respect of such Term Loans (for any Class of Term Loans, the applicable amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) then the Applicable Percentage then in effect for such Class of Term Loans shall automatically be increased by the applicable Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.24 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in paragraphs (b) and (c) of Section 4.02 have been satisfied;
(iii) the Borrower 4.01 shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower, signed, to the extent applicable, by each of the parties thereto (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and (iii) except with respect to any Refinancing Incremental Term Loans, immediately after giving effect to the incurrence of such Incremental Term Loans and the use of the proceeds thereof, the Secured Leverage Ratio Condition would be satisfied.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Extended Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Extended Term Loan Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Extended Term Loan Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(iii) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have At any time after the right from time to time during Closing Date and on or before March 14, 2018, the term of this AgreementBorrowers may, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent Agent, elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, an "Incremental Term Loan Commitment") to make an incremental term loan (any such incremental term loan, an "Incremental Term Loan"); provided that FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 2 42575.100083 EMF_US 56186669v6
(i) subject to Section 2.14(d), the total aggregate amount of all Incremental Term Loan Commitments shall set forth not exceed $30,000,000, and (ii) the total aggregate amount of all Incremental Term Loan Commitments made effective at any one time shall not be less than the minimum principal amount of $5,000,000. Each such notice shall specify the date (each, an "Incremental Term Loan Effective Date") on which the Borrowers propose that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that. The Borrowers may invite any Lender, notwithstanding anything any Affiliate of any Lender, any Approved Fund and/or any other Person reasonably satisfactory to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an "Incremental Term Loan Lender"). Any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretionSole Discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request Commitment shall execute and deliver to become effective as of the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be Effective Date applicable thereto; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist at the time of the request on such Incremental Term Loan Effective Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loan pursuant thereto and (3) the proposed consummation of any transaction to be funded in whole or in part thereby or in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrowers a Compliance Certificate demonstrating that the Borrowers will be in compliance on a pro forma basis with each of the financial covenants set forth in Article XIV both before and after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loan pursuant thereto and (3) the consummation of any transaction to be funded in whole or in part thereby or in connection therewith;
(C) the proceeds of any Incremental Term Loans shall be used for the purposes specified in Section 7.09(d);
(D) each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Credit Extensions on a pari passu basis;
(1) each Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loans and the Borrowers, but will not in any event have a shorter average life to maturity than the remaining average life to maturity of the Initial Term Loans or a maturity date earlier than the Maturity Date and, unless otherwise agreed by the Administrative Agent, the maturity date of each Incremental Term Loan shall be the Maturity Date;
(2) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Term Loan Lenders and the Borrowers on the applicable Incremental Term Loan Effective Date; provided that if the Applicable Margin in FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 3 42575.100083 EMF_US 56186669v6 respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loans by more than 0.50%, then the Applicable Margin for the Initial Term Loans shall be increased so that the Applicable Margin in respect of the Initial Term Loans is equal to the Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loans, (x) original issue discount ("OID") or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the Lenders under such Incremental Term Loan or the Initial Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to the Lead Arranger (or its affiliates) in connection with the Initial Term Loans or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall be excluded (it being understood that the effects of any and all interest rate floors shall be included in determining Applicable Margin(s) under this provision); and
(3) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.14, be identical to the terms and conditions applicable to the Initial Term Loans;
(iiF) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfiedany Incremental Term Loan Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan facility and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Initial Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the Initial Term Loans and the Incremental Term Loans);
(iiiG) the Borrower shall have provided Incremental Term Loan Cash Collateral as required Commitments shall be effected pursuant to Section 6.10 hereof one or more Lender Joinder Agreements executed and delivered by the Borrowers, the Administrative Agent shall have received copies and the applicable Incremental Term Loan Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the Collateral other Loan Documents as may be necessary or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (orappropriate, in the case opinion of the Administrative Agent, to effect the provisions of this Section 2.14); and
(H) the Borrowers shall deliver or cause to be delivered any party as to which an executed counterpart shall not have been receivedcustomary legal opinions or other documents (including, receipt without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party and Alon USA authorizing such Incremental Term Loan) reasonably requested by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from in connection with any such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory transaction.
(b) (i) The Incremental Term Loans shall be deemed to be Term Loans; provided that all Incremental Term Loans made pursuant to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any same Incremental Term Lender making an Incremental Loan Commitment shall be designated as a separate tranche of Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loans for all purposes of such Incremental Term Lenders evidencing such Incremental Term Loans.this Agreement. FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 4 42575.100083 EMF_US 56186669v6
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Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during after the term of this AgreementTerm Loan Escrow Release Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under in accordance with this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedSection 2.12.
(b) Any such Each tranche of Incremental Term Loans shall be madein an aggregate principal amount of not less than $50,000,000 (provided that such amount may be less if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, at the option aggregate amount of all Incremental Term Loans shall not exceed $500,000,000. The Incremental Term Loans may only be in Dollars. Each tranche of the BorrowerIncremental Term Loans (i) shall rank pari passu in right of payment and have the equal benefit of guarantees and security with the Loans, by (ii) shall not have a final maturity date earlier than the Maturity Date and (iii) except as set forth in clauses (A), (B) and (C) of the proviso hereto, shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that (A) except as provided herein, the terms and conditions applicable to any tranche of Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably satisfactory to the Administrative Agent, (B) in the event that the Applicable Rate for any Incremental Term Loans is more than 50 basis points greater than the Applicable Rate for the Term Loans, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rate for the Incremental Term Loans is no more than 50 basis points greater than the Applicable Rate for the Term Loans; provided further, that in determining the Applicable Rate applicable to the Term Loans and the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four (4)-year life to maturity), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their affiliates) in connection with the Term Loans or to one or more existing Lenders and/or arrangers (yor their affiliates) one or more financial institutions that of the Incremental Term Loans shall be excluded and (z) if the Eurodollar Rate floor applicable to the Incremental Term Loans is higher than the Eurodollar Floor applicable to the Term Loans, the amount of such difference shall be deemed to be an increase to the Applicable Rate for the Incremental Term Loans for the purposes of determining compliance with this clause (B); and (C) the amortization schedule applicable to any tranche of Incremental Term Loans shall be determined by the Borrower and the lenders thereof, in each case so long as the Weighted Average Life to Maturity for any tranche of Incremental Term Loans shall not an be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans. Each notice from the Borrower pursuant to this Section 2.12 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) Incremental Term Loans may be made, by any existing Lender (and each existing Term Lender shall have the right, but not an obligation, to make a portion of any such Lender or financial institution referred to Incremental Term Loan, on terms permitted in this Section 2.17(b2.12 and otherwise on terms reasonably acceptable to the Administrative Agent) being called or by any other bank or other financial institution (any such other bank or other financial institution, an “Incremental Term Additional Lender”); provided that any the Administrative Agent shall have consented (not to be unreasonably withheld) to such non-existing Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans as applicable, to such Lender or financial institution Additional Lender.
(Ad) must be an Eligible Assignee, (B) must have an 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 agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of at least $5,000,000 unless otherwise agreed any other Agents or Lenders, effect such amendments to by this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower and (C) must become an Borrower, to effect the provisions of this Section 2.12. The effectiveness of any Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender Amendment shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver subject to the Administrative Agent satisfaction on the date thereof (each, an “Incremental Term Loan Agreement and such other documentation as Facility Closing Date”) of each of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
following conditions (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the would result from such proposed Incremental Term Loans;
Loans and (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the representations and warranties of the Borrower and each other Loan Party contained in Article V shall have provided Incremental Term Loan Cash Collateral be true and correct in all material respects on and as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signeddate hereof; provided that, to the extent applicablethat such representations and warranties specifically refer to an earlier date, by each they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates. The Borrower shall use the proceeds of the parties thereto Incremental Term Loans for any purpose not prohibited by this Agreement.
(or, e) This Section 2.12 shall supersede any provisions in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication Section 2.11 or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory 10.01 to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanscontrary.
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Incremental Term Loans. (ai) The Borrower shall have the right from may at any time to time during the term of this Agreement, and subject prior to the terms and Term Loan Maturity Date request one or more Borrowings of additional Term Loans (each, an “Incremental Term Loan”); provided, however, that the Borrower shall not make such a request if the conditions set forth in this Section 2.17, to 2.17(i) are not satisfied. Any such request in writing incremental term loans (shall be submitted by the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Borrower to the Administrative Agent (which shall set forth promptly forward copies to the date on which existing Term Lenders), specify the proposed Incremental Effective Date (as defined below) and amount of such proposed Incremental Term Loan Borrowing and be accompanied by a certificate of a Responsible Officer of the Borrower certifying that no Event of Default exists or will occur as a result of such Incremental Term Loans are requested Loan Borrowing. Only those existing Term Lenders that agree to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed extend an Incremental Term Loan Agreement for as part of such Incremental Term Loans Loan Borrowing (each, an “Incremental Term Lender”) and those New Lenders that agree to extend an Incremental Term Loan as an attachment thereto; provided thatpart of such Incremental Term Loan Borrowing that shall be entitled to receive any fees in connection with such Incremental Term Loan Borrowing. No Term Lender shall have any obligation, notwithstanding anything express or implied, to the contrary contained herein or in offer any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeLoan. In connection with any such request, Only the consent of the Administrative Agent each Incremental Term Lender shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent for an advance of any Lender (other than any Lender providing an Incremental Term Loan pursuant to this Section 2.17(a). No Term Lender that elects not to advance an Incremental Term Loan may be replaced in respect of its existing Term Loan as a result thereof without such request) is required to be obtainedTerm Lender’s written consent.
(bii) Any Incremental Term Loans will be made subject to this Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed (in the case of such amendment to this Agreement) by the Borrower, each Incremental Term Lender, if any, each New Lender, if any, and the Administrative Agent. The Incremental Term Loans shall have terms and conditions substantially identical to those applicable to the Closing Date Term Loans (other than with respect to pricing (provided that the pricing for the Incremental Term Loans shall be madebased on the same “Tiers” and corresponding Total Leverage Ratios (but not necessarily the same Applicable Margins) as is set forth in the then effective definition of Applicable Margin), at the option of the Borrowerarrangement fees, by (x) one or more existing Lenders and/or (y) one or more financial institutions upfront fees and additional fees, amortization, maturity and any different drawing conditions that is not an existing Lender (any such Lender or financial institution referred are agreed to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an the applicable Incremental Term Loan of at least $5,000,000 unless Amendment) and will be otherwise agreed on terms and subject to by conditions reasonably satisfactory to the Administrative Agent Agent. Each Incremental Term Loan Amendment shall, without the consent of any other Lenders, amend the provisions of this Agreement and the other Credit Documents to set forth the terms of the Incremental Term Loans, including the amount and final maturity thereof (which shall not be earlier than the Revolving Loan Maturity Date or the Term Loan Maturity Date), any provisions relating to amortization (it being agreed that the weighted average life of such loans may be no less than the then current weighted average life of the Closing Date Term Loans and that there shall be no provisions for mandatory prepayments of and offers to prepay the Incremental Term Loans (other than on a ratable basis with the Closing Date Term Loans)) and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes as the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to necessary or advisable in connection with such Incremental Term Loans. If the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by Applicable Margin for any Incremental Term Lender making an Incremental Term Loan, Loans payable to the Borrower shall have executed and delivered Incremental Term Notes Lenders in favor respect of such Incremental Term Lenders evidencing Loans exceeds the Applicable Margin for the Closing Date Term Loans by more than 1.00%, then (x) the Applicable Margins for the Closing Date Term Loans shall be increased so that the Applicable Margin for the Closing Date Term Loans (giving effect to such increase in the Applicable Margins) is no more than 1.00% less than the Applicable Margin for such Incremental Term Loans and (y) the Applicable Margins for the Revolving Loans shall be increased by a corresponding amount. For purposes of comparing the Applicable Margins of the Incremental Term Loans and the Closing Date Term Loans, such Applicable Margins shall be calculated in the manner described in the foregoing sentence for each “Tier” of the definition of Applicable Margin (assuming such “Tier” were in effect for the entire term of the Incremental Term Loans and Closing Date Term Loans), and any increase to the Applicable Margins for the Closing Date Term Loans and Revolving Loans shall be made pursuant to the foregoing sentence only with respect to those “Tiers” of the definition of Applicable Margin for which the Applicable Margin for the Closing Date Term Loans is more than 0.50% less than the interest at the corresponding pricing tiers applicable to such Incremental Term Loans. All Incremental Term Loans shall rank pari passu in right of payment with the other Loans and shall benefit equally and ratably from the Security Documents.
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Incremental Term Loans. (a) The Borrower shall have At any time after the right from time to time during Closing Date and on or before March 14, 2018, the term of this AgreementBorrowers may, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, an "Incremental Term Loan Commitment") to make an incremental term loan (any such incremental term loan, an "Incremental Term Loan"); provided that (i) the total aggregate amount of all Incremental Term Loan Commitments shall set forth not exceed $30,000,000, and (ii) the total aggregate amount of all Incremental Term Loan Commitments made effective at any one time shall not be less than the minimum principal amount of $5,000,000. Each such notice shall specify the date (each, an "Incremental Term Loan Effective Date") on which the Borrowers propose that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that. The Borrowers may invite any Lender, notwithstanding anything any Affiliate of any Lender, any Approved Fund and/or any other Person reasonably satisfactory to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an "Incremental Term Loan Lender"). Any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretionSole Discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request Commitment shall execute and deliver to become effective as of the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be Effective Date applicable thereto; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist at the time of the request on such Incremental Term Loan Effective Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loan pursuant thereto and (3) the proposed consummation of any transaction to be funded in whole or in part thereby or in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrowers a Compliance Certificate demonstrating that the Borrowers will be in compliance on a pro forma basis with each of the financial covenants set forth in Article XIV both before and after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loan pursuant thereto and (3) the consummation of any transaction to be funded in whole or in part thereby or in connection therewith;
(C) the proceeds of any Incremental Term Loans shall be used for the purposes specified in Section 7.09(e);
(D) each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall constitute Obligations of the Borrowers and Obligor Name: Southwest Convenience Stores, LLC and Skinny's, LLC Obligor No.: 0262937922 SECOND AMENDED AND RESTATED CREDIT AGREEMENT – Page 55 42575.100083 EMF_US 48981686v14 shall be secured and guaranteed with the other Credit Extensions on a pari passu basis;
(1) each Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loans and the Borrowers, but will not in any event have a shorter average life to maturity than the remaining average life to maturity of the Initial Term Loans or a maturity date earlier than the Maturity Date and, unless otherwise agreed by the Administrative Agent, the maturity date of each Incremental Term Loan shall be the Maturity Date;
(2) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Term Loan Lenders and the Borrowers on the applicable Incremental Term Loan Effective Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loans by more than 0.50%, then the Applicable Margin for the Initial Term Loans shall be increased so that the Applicable Margin in respect of the Initial Term Loans is equal to the Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loans, (x) original issue discount ("OID") or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the Lenders under such Incremental Term Loan or the Initial Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to the Lead Arranger (or its affiliates) in connection with the Initial Term Loans or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall be excluded (it being understood that the effects of any and all interest rate floors shall be included in determining Applicable Margin(s) under this provision); and
(3) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.14, be identical to the terms and conditions applicable to the Initial Term Loans;
(iiF) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided any Incremental Term Loan Cash Collateral Lender making any Incremental Term Loan shall be entitled to the same voting rights as required the existing Term Loan Lenders under the Term Loan facility and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Initial Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the Initial Term Loans and the Incremental Term Loans); and
(G) the Incremental Term Loan Commitments shall be effected pursuant to Section 6.10 hereof one or more Lender Joinder Agreements executed and delivered by the Borrowers, the Administrative Agent shall have received copies and the applicable Incremental Term Loan Obligor Name: Southwest Convenience Stores, LLC and Skinny's, LLC Obligor No.: 0262937922 SECOND AMENDED AND RESTATED CREDIT AGREEMENT – Page 56 42575.100083 EMF_US 48981686v14 Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the Collateral other Loan Documents as may be necessary or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (orappropriate, in the case opinion of the Administrative Agent, to effect the provisions of this Section 2.14); and
(H) the Borrowers shall deliver or cause to be delivered any party as to which an executed counterpart shall not have been receivedcustomary legal opinions or other documents (including, receipt without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party and Alon USA authorizing such Incremental Term Loan) reasonably requested by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from in connection with any such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory transaction.
(b) (i) The Incremental Term Loans shall be deemed to be Term Loans; provided that all Incremental Term Loans made pursuant to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any same Incremental Term Lender making an Incremental Loan Commitment shall be designated as a separate tranche of Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loans for all purposes of such Incremental Term Lenders evidencing such Incremental Term Loansthis Agreement.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may, from time to time during after the term Closing Date, with the prior written consent of this Agreementthe Administrative Agent, and subject to the terms and conditions set forth in this Section 2.17, to on one or more occasions request in writing incremental additional term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such delivering notice to the Administrative Agent shall set forth at least [***] prior to the date on which such requested Credit Date identifying the amount of Incremental Term Loans are requested to be made so requested; provided, however, that:
(which shall not be less than three (3a) Business Days nor more than 60 days after the date aggregate amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, all such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.exceed $300,000,000;
(b) Any the Lenders making such Incremental Term Loans have received investment committee approval (in such investment committee’s sole discretion) with respect thereto, and no Lender shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (obligated to provide any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least Commitments or fund any Incremental Term Loan without its consent;
(c) any such Increase shall be in an amount not less than $5,000,000 unless otherwise [***] (or such lesser amount then agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.Agent);
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective terms and no conditions with respect to any such Incremental Term Loans (including any fees payable in connection therewith) shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided applicable Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative AgentAmendment with respect thereto; and
(ve) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes commitments in favor respect of such Incremental Term Lenders evidencing such Loans (the “Incremental Term LoansLoan Commitments”) shall become Term Loan Commitments hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Term Loan Commitment, if any, each additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.21.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, within twenty (20) Business Days after the right from time Closing Date (or such longer period acceptable to time during the Administrative Agent in its sole discretion), request the establishment of additional term loan commitments, and the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans related thereto (the “Incremental Term Loans”) shall be made documented as (and for all purposes under this Agreement by Incremental and the other Loan Documents constitute) Term Lenders pursuant to one or more Incremental Loans (a “Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall Increase”) in an aggregate principal amount not be in excess of $250,000,000 and not less than three $100,000,000 individually (3) Business Days nor more than 60 days after the date of or such notice (which time periods lesser amount as may be modified or waived at the discretion of approved by the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Increase; provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of such Term Loan Increase may elect or decline, in its sole discretion, to provide all or a portion thereof, and the Borrower shall have no obligation to approach any existing Lender to provide all of any portion of a Term Loan Increase. Any Term Loan Increase shall be effected pursuant to one or more amendments to this Agreement (each, an “Incremental Amendment”) executed and delivered by the Borrower, the Administrative Agent and the Persons providing such Term Loan Increase, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). No Lender shall have any obligation to provide all or any portion of any Term Loan Increase pursuant to this Section 2.14(a). For all purposes of this Agreement and the other Loan Documents, the Incremental Term Loans shall constitute Term Loans and be part of the same tranche of loans as the Term Loans incurred on the Closing Date.
(b) The Borrower shall use the proceeds, if any, of the Incremental Term Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Term LoanLoans.
(c) The Borrower terms and each provisions of any Incremental Term Lender that has agreed Loans shall be identical to provide an the terms and provisions applicable to the Term Loans (and shall be deemed to constitute part of the same tranche of loans as the Term Loans incurred on the Closing Date). The Incremental Term Loan pursuant Loans will be added to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loansmade a part (on a pro rata basis) of each then outstanding LIBOR Borrowing.
(d) Notwithstanding The Administrative Agent and the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.17 unless:
2.14 and hereby waive the requirements of any provision of this Agreement (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in including, without limitation, Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 13.1 hereof and any other amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental Amendment may (notwithstanding any other provision of this Agreement or any other Loan Document, including Section 13.1 hereof), without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall have received copies of and the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedBorrower, to effect the extent applicable, by each provisions of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.14.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, the Borrower may at any time or from time to request in writing incremental term loans (time after the “Incremental Term Loans”) be made under this Agreement Closing Date, by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth (an “Incremental Loan Request”), request one or more new commitments which may be of the date on which such Incremental same Class as any outstanding Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental a “Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein Increase”) or in a new Class of term loans (collectively with any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestIncrease, the consent of “Incremental Commitments”), whereupon the Administrative Agent shall be required (such consent not promptly deliver a copy to be unreasonably withheld, conditioned or delayed), but no consent each of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedthe Lenders.
(b) Any such On the applicable date (each, an “Incremental Facility Closing Date”) specified in the applicable Additional Credit Extension Amendment (including through any Term Loans shall be madeLoan Increase), at subject to the option satisfaction of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to terms and conditions in this Section 2.17(b2.20 and in the applicable Additional Credit Extension Amendment, (i) being called each Incremental Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Commitment of such Class and (ii) each Incremental Lender of such Class shall become a Lender hereunder with respect to the Incremental Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto.
(c) Each Incremental Loan Request from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Incremental Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Incremental Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Commitment or Loan, an “Incremental Lender” and, collectively, the “Incremental Lenders”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify have consented (not to provide for the requested be unreasonably withheld or delayed) to such Additional Lender’s making such Incremental Term LoansLoans to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Term Loans to such Lender or Additional Lender.
(d) Notwithstanding The effectiveness of any Additional Credit Extension Amendment pursuant to this Section 2.20, and the foregoingIncremental Commitments thereunder, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unlesssubject to the satisfaction on the applicable date specified therein (the “Incremental Amendment Date”) of each of the following conditions, together with any other conditions set forth in the applicable Additional Credit Extension Amendment:
(i) no Default after giving effect to such Incremental Commitments, the conditions of Section 4.02 shall be satisfied; provided, that, in connection with any Incremental Commitment, which is being used to finance a Limited Condition Transaction, the Incremental Lenders party to such Additional Credit Extension Amendment shall be permitted to waive or limit (or not require the satisfaction of) in full or in part any of the conditions set forth in Section 4.02(a) (other than the accuracy, to the extent required under Section 4.02(a), of any Specified Representations) and Section 4.02(b) (other than with respect to any Event of Default shall exist at under Section 7.01(a), (b), (h) or (i)) without the time consent of the request or at the time of the making of the proposed Incremental Term Loans;existing Lenders,
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all conditions precedent for a Borrowing remaining availability under the limit set forth in Section 4.02 have been satisfied;2.20(d)(iii)),
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, except in the case of Refinancing Term Loans (A) after giving Pro Forma Effect to both (x) the making of Incremental Term Loans under such Additional Credit Extension Amendment and (y) any party Specified Transactions consummated in connection therewith, (1) if such Incremental Commitments rank pari passu or junior in right of security with the Obligations, the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available does not exceed 5.25:1.00, or (2) if such Incremental Commitments are unsecured, the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available does not exceed 5.50:1.00 (but no Indebtedness may be incurred pursuant to which an executed counterpart shall this clause (2) until the date that is six (6) months after the Closing Date), or (B) together with the Incremental Term Loans made under such Additional Credit Extension Amendment, the aggregate principal amount of Incremental Term Loans made in reliance on this clause (B) on such date, when aggregated with the other Free and Clear Usage Amount on such date, does not have been receivedexceed the sum of (i) $100,000,000 plus (ii) the principal amount of any voluntary prepayments of Term Loans and First Lien Term Loans (other than to the extent made with the proceeds of Long-Term Indebtedness (other than the incurrence of First Lien Revolving Loans or extensions of credit under any other revolving facility)); provided, that, it is understood that (1) Incremental Term Loans may be incurred under either clause (A) or clause (B) above as selected by the Borrower in its sole discretion and (2) Incremental Term Loans may be incurred under both clause (A) and clause (B) above, and proceeds from any such incurrence under both clause (A) and clause (B) may be utilized in a single transaction or series of related but substantially concurrent transactions by first calculating the incurrence under clause (A) (without giving effect to any Incremental Term Loans under clause (B)) and then calculating the incurrence under clause (B), and
(iv) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of telegraphic(A) customary legal opinions, telecopyboard resolutions and officers’ certificates (including solvency certificates) consistent (and in no event more extensive) with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, electronic communication change in fact or other written confirmation from such party change to counsel’s form of execution of a counterpart thereof by such party), in each case in form and substance opinion reasonably satisfactory to the Administrative Agent;
Agent and (ivB) reaffirmation agreements and/or such amendments to the Security Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Lenders are provided with the benefit of the applicable Loan Documents.
(e) The terms, provisions and documentation of the Incremental Term Loans and Incremental Commitments of any Class shall have received customary legal opinionsbe as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Commitments, resolutions and closing certificates except as otherwise set forth herein, to the extent not identical to any Class of Term Loans, each existing on the Incremental Facility Closing Date, shall be consistent with clauses (i) through (iii) below, as applicable, and other documentation as it shall reasonably request, in each case in form and substance otherwise reasonably satisfactory to the Administrative AgentAgent (except for covenants or other provisions (a) conformed (or added) in the Loan Documents pursuant to the related Additional Credit Extension Amendment, in the case of any Class of Incremental Term Loans and Incremental Commitments, for the benefit of the Term Lenders or (b) applicable only to periods after the Latest Maturity Date as of the Incremental Amendment Date); provided that in the case of a Term Loan Increase, the terms, provisions and documentation (other than the Additional Credit Extension Amendment evidencing such increase) of such Term Loan Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Term Loans being increased, in each case, as existing on the Incremental Facility Closing Date. In any event:
(i) the Incremental Term Loans:
(A) (I) shall rank pari passu or junior in right of payment with the Obligations and (II) shall be secured by the Collateral and shall rank pari passu or junior in right of security with the Obligations or be unsecured (and, subject to a subordination agreement (if subject to payment subordination), or (if subject to lien subordination) a Junior Lien Intercreditor Agreement),
(B) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the Initial Maturity Date,
(C) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(D) shall have an Applicable Rate, and subject to clauses (e)(i)(B) and (e)(i)(C) above, amortization determined by the Borrower and the applicable Incremental Lenders; provided the Applicable Rate and amortization for a Term Loan Increase shall be (x) the Applicable Rate and amortization for the Class being increased or (y) in the case of the Applicable Rate, higher than the Applicable Rate for the Class being increased as long as the Applicable Rate for the Class being increased shall be automatically increased as and to the extent necessary to eliminate such deficiency,
(E) shall have fees determined by the Borrower and the applicable Incremental Term Loan Arranger(s) and/or lender(s), and
(vF) may participate (I) in any voluntary prepayments of any Class of Term Loans hereunder, in whole or in part, as selected by the Borrower in its sole discretion and subject to the requirements of Section 2.11 and (II) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except for prepayments with Net Proceeds from any event described in clause (c) of the definition of the term “Prepayment Event”) in any mandatory prepayments of Term Loans hereunder.
(ii) [Reserved];
(iii) the Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Additional Credit Extension Amendment; provided, however, that with respect to any Incremental Term Loans (other than Refinancing Term Loans) made on or prior to the date that is 12 months after the Closing Date that are pari passu in right of payment and security with the Obligations, the Yield applicable to such Incremental Term Loans shall not be greater than the applicable Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans plus 50 basis points per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted LIBO Rate or Alternate Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable Yield under this Agreement on the Initial Term Loans to equal the Yield then applicable to the Incremental Term Loans minus 50 basis points; provided, further, that any increase in Yield to any Initial Term Loans due to the application or imposition of a Adjusted LIBO Rate or Alternate Base Rate floor on any Incremental Term Loan shall be effected solely through an increase in (or implementation of, as applicable) the Adjusted LIBO Rate or Alternate Base Rate floor applicable to such Initial Term Loans.
(f) Commitments in respect of Incremental Term Loans shall become additional Commitments pursuant to an Additional Credit Extension Amendment, executed by the Borrower, each Incremental Lender providing such Commitments and the Administrative Agent. The Additional Credit Extension Amendment may, without the consent of any other Loan Party, Agent or Lender, 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 effect the provisions of this Section 2.20, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent requested by any Incremental Term Lender making an Loans are to rank junior in right of security or payment or to address technical issues relating to funding and payments. The Borrower will use the proceeds of the Incremental Term Loan, the Borrower shall have executed and delivered Loans for any purpose not prohibited by this Agreement.
(g) [Reserved].
(h) The Incremental Term Notes Loans made under each Term Loan Increase shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in favor Section 2.01 (as may be conformed as necessary or appropriate as reasonably determined by the Administrative Agent) and on the date of the making of such Incremental Term Lenders evidencing Loans, and notwithstanding anything to the contrary set forth in Section 2.01, such Incremental Term LoansLoans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans of such Class.
(i) This Section 2.20 shall supersede any provisions in Sections 2.18 or 9.02 to the contrary.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein, (i) each Incremental Tranche A Term Loan Lender agrees to make an Incremental Tranche A Term Loan on the Funding and Repricing Date to the Borrower in this Section 2.17a principal amount equal to such Incremental Tranche A Term Loan Lender’s Incremental Tranche A Term Loan Commitment, for a total of $10,824,106 in the aggregate for all Incremental Tranche A Term Loans and
(ii) each Incremental Tranche B Term Loan Lender agrees to request make an Incremental Tranche B Term Loan on the Funding and Repricing Date to the Borrower in writing incremental term loans (a principal amount equal to such Incremental Tranche B Term Loan Lender’s Incremental Tranche B Term Loan Commitment for a total of $23,523,750 in the “aggregate for all Incremental Tranche B Term Loans”.
(b) be made under this For purposes hereof, a Person may become a party to the Existing Credit Agreement by Incremental as amended hereby as a Term Lenders pursuant to one Loan Lender or more an Incremental Term Loan AgreementsLender as of the Funding and Repricing Date by executing and delivering to the Administrative Agent, on or prior to the Funding and Repricing Date, a counterpart signature page to this First Amendment in its capacity as an Incremental Term Loan Lender. Such The Borrower shall give notice to the Administrative Agent shall set forth of the date on which such Incremental Term Loans are requested to be made (which shall proposed Funding and Repricing Date not be less later than three (3) Business Days nor more than 60 days after the date (or such shorter period of such notice (which time periods as may be modified or waived at requested by the discretion of the Administrative Agent)) Borrower and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent Agent) prior thereto, and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Administrative Agent shall notify each Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanthereof.
(c) Each Incremental Term Loan Lender will make its Incremental Term Loan on the Funding and Repricing Date by making available to the Administrative Agent, in accordance with the Amended and Restated Credit Agreement, an amount equal to its Incremental Term Loan Commitment. The Borrower and Incremental Term Loan Commitments of each Incremental Term Loan Lender that has agreed to provide an are several and no such Incremental Term Loan pursuant Lender will be responsible for any other such Incremental Term Loan Lender’s failure to such request shall execute make its Incremental Term Loan. The Incremental Term Loans may from time to time be ABR Loans or Eurodollar Loans, as determined by the Borrower and deliver notified to the Administrative Agent an Incremental Term Loan Agreement in accordance with the Amended and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansRestated Credit Agreement.
(d) Notwithstanding the foregoing, no The obligation of each Incremental Term Loan Agreement shall become effective and no Lender to make Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at on the time Funding and Repricing Date is subject to the satisfaction of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;6.
(e) On and after the Funding and Repricing Date, and in each case on the terms set forth in the Amended and Restated Credit Agreement, each reference in the Financing Documents to: (i) “Tranche A Term Loans” shall be deemed to include the Incremental Tranche A Term Loans contemplated hereby, (ii) “Tranche B Term Loans” shall be deemed to include the Incremental Tranche B Term Loans contemplated hereby, (iii) “Term Loans” shall be deemed to include the Borrower Incremental Term Loans contemplated hereby, (iv) “Tranche A Term Loan Lenders” shall have provided be deemed to include the Incremental Tranche A Term Loan Lenders, (v) “Tranche B Term Loan Lenders” shall be deemed to include the Incremental Tranche B Term Loan Lenders, (vi) “Term Loan Lenders” shall be deemed to include the Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryLenders, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyvii), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement
Incremental Term Loans. (a) The Borrower shall have Following the right Agreement Date, AGCO may from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on through the Maturity Date, shall not require propose that additional term loans in U.S. Dollars be made to it or any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to Borrowers in accordance with this Section 2.17(b) being called (each, an “Incremental Term LenderLoan”) by delivering a Notice of Incremental Term Loan Borrowing to Administrative Agent substantially in the form of Exhibit N hereto (a “Notice of Incremental Term Loan Borrowing”); provided that , specifying (subject to the restrictions set forth in clause (b) below) therein the (i) amount of the Tranche of Incremental Term Loans requested (which Tranche shall be in a minimum principal amount of $100,000,000 and integral multiples of $50,000,000 in excess thereof), (ii) requested advance date of the proposed Incremental Term Loans comprising such Tranche (which shall be at least 15 Business Days from the date of delivery of the Notice of Incremental Term Loan Borrowing), (iii) the interest rate to be applicable to all Incremental Term Loans in such Tranche, (iv) the amortization for all Incremental Term Loans in such Tranche, and (v) the amount of any such non-existing Lender upfront or financial institution closing fees to be paid by the Borrowers to the Lenders funding the Tranche of Incremental Term Loans requested. Subject to the last sentence in clause (d) below, each Notice of Incremental Term Loan Borrowing delivered by AGCO shall be irrevocable and shall be binding upon all Loan Parties. At the time of delivery of the Notice of Incremental Term Loan Borrowing, AGCO shall also deliver to Administrative Agent a certificate of a Responsible Employee of AGCO certifying (A) must be an Eligible Assigneethat AGCO and its Subsidiaries are in compliance with the financial covenants set forth in Section 6.10 hereof before and after giving effect to such Incremental Term Loan Borrowing, and (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default then exists or would be caused thereby.
(b) The aggregate principal amount of all Tranches of Incremental Term Loans made pursuant to this Section shall exist not exceed $400,000,000. Repayments of the principal of any Incremental Term Loans may not be reborrowed. Each Tranche of Incremental Term Loans shall bear interest at the time Base Rate or the LIBO Rate plus such Applicable Margin as is set forth in the Notice of the request or at the time of the making of the proposed Incremental Term Loans;
Loan Borrowing related to such Tranche, and shall be subject to the amortization set forth in the applicable Notice of Incremental Term Loan Borrowing relating to such Tranche, provided, however, (i) the final maturity date of any Tranche of Incremental Term Loans shall be the Maturity Date, and (ii) the amortization of the Incremental Term Loans of any Tranche shall not require a percentage of the Incremental Term Loans of such Tranche to be repaid in any Fiscal Quarter in excess of the Initial Term Loan Repayment Percentage in effect as of the last day of such Fiscal Quarter. All Incremental Term Loans shall for all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;purposes be Obligations hereunder and under the Loan Documents.
(iiic) the Borrower Administrative Agent shall have provided deliver a copy of each Notice of Incremental Term Loan Cash Collateral Borrowing to such Lenders or other Persons that qualify as required pursuant an Eligible Assignee as may be determined by Administrative Agent in its reasonable discretion with the approval of AGCO or as may be specified by AGCO. No Lender shall have any obligation to Section 6.10 hereof fund any Incremental Term Loan, and any decision by a Lender to fund any Incremental Term Loan shall be made in its sole discretion independently from any other Lender.
(d) If Administrative Agent receives commitments from Lenders and/or from any other Person that (i) qualifies as an Eligible Assignee and is acceptable to AGCO and Administrative Agent in its reasonable discretion, and (ii) has agreed to become a Lender in respect of all or a portion of an Incremental Term Loan (an “Additional Lender”), in excess of the requested Incremental Term Loan, Administrative Agent shall have received copies the right, in its sole discretion but with the consent of AGCO, to reduce and reallocate (within the minimum and maximum amounts specified by each such Lender or Additional Lender in its notice to Administrative Agent) the shares of the Collateral Documents Incremental Term Loan of the Lenders or any amendments thereto Additional Lenders willing to fund such Incremental Term Loan so that the total committed Incremental Term Loan equals the requested Incremental Term Loan. If Administrative Agent does not receive commitments from Lenders (or Additional Lenders) in an amount sufficient to fund the requested Incremental Term Loan, Administrative Agent shall deem reasonably necessaryso notify AGCO and the Notice of Incremental Term Loan Borrowing shall be deemed automatically rescinded; provided, signed, AGCO may submit a replacement Notice of Incremental Term Loan Borrowing setting forth different terms for the requested Incremental Term Loan Borrowing.
(e) An agreement to fund Incremental Term Loans pursuant to this Section shall become effective upon the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case an agreement in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinionsand AGCO signed by each Loan Party, resolutions by each Additional Lender and closing certificates and other documentation as it shall reasonably request, in by each case in form and substance reasonably satisfactory existing Lender who has agreed to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing fund such Incremental Term Loans, setting forth the new Incremental Term Loans of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement as a Lender and to be bound by all the terms and provisions hereof, together with officer’s certificates and ratification agreements executed by each Loan Party and such evidence of appropriate corporate authorization on the part of each Loan Party with respect to the requested Incremental Term Loans, any amendments to this Agreement and any other Loan Documents reasonably requested by Administrative Agent in relation to the requested Incremental Term Loans (which amendments to the Loan Documents (other than this Agreement) Administrative Agent is hereby authorized to execute on behalf of the Lenders), and such opinions of counsel for the Loan Parties with respect to the requested Incremental Term Loans and other assurances and documents as Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) Business Days 10 days nor more than 60 days after the date of such notice and which shall be no earlier than the Delayed Draw Termination Date (or such earlier date upon which time periods may be modified or waived at the discretion of the Administrative Agentall Delayed Draw Term Loan Commitments shall have expired)), and (iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Funded Term Loans, additional Delayed Draw Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Funded Term Loans shall mature on and the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required Delayed Draw Term Loans (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield (excluding upfront or arrangement fees payable to the arranger, if any, of such loan) on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same (as opposed to the arranger, if any, thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.24 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in paragraphs (b) and (c) of Section 4.02 have been satisfied;
(iii) the Borrower 4.01 shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower, signed, to the extent applicable, by each of the parties thereto and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Funded Term Loans or Delayed Draw Term Loans, as the case may be, on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing of the applicable Class to be converted into an ABR Term Borrowing of such Class on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing of the applicable Class on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11 (a)(i) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right At any time and from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17herein, the Borrower may, by notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request in writing incremental to increase the amount of Initial Term B Loans or add one or more additional tranches of term loans (any such Initial Term B Loans or additional tranche of term loans, the “Incremental Term Loans”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment no Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Term Loans (other than Refinancing Term Loans) outstanding at any time (determined at the time of incurrence) shall not exceed the Maximum Incremental Facilities Amount. Each Facility of Incremental Term Loans (an “Incremental Facility”) shall be made in an aggregate principal amount that is not less than $25,000,000 unless otherwise agreed by the Agent, provided that such amount may be less than the applicable minimum amount if such amount represents the entirety of the remaining Maximum Incremental Facilities Amount. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term and the other Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedDocuments.
(b) Any Incremental Term Loans (i) may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the applicable Incremental Facility Amendment, and (ii) other than with respect to amortization, pricing or maturity date, shall otherwise have the same terms as the Initial Term B Loans or such other terms as are reasonably satisfactory to the Agent, provided that (A) except in the case of Refinancing Term Loans, if the Effective Yield payable to Lenders with respect to any Incremental Term Loans made on or prior to the date that is twelve (12) months after the Closing Date exceeds the Effective Yield of the Initial Term B Loans by more than 0.50%, then the Applicable Margin relating to the Initial Term B Loans shall be adjusted upwards by an amount equal to such excess minus 0.50%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term B Loans and (C) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans.
(c) Each notice from the Borrower pursuant to this Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Any Person selected by the Borrower that elects to extend Incremental Term Loans shall be madean Eligible Assignee and, at unless a Lender, an Affiliate of a Lender or an Approved Fund of a Lender, shall be reasonably acceptable to the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender Agent (any such Lender or financial institution referred to in this Section 2.17(b) Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Agent. Any Incremental Facility Amendment shall not require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Lender”); provided that Loans, unless it so agrees. Commitments in respect of any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loans shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of at least $5,000,000 the Agent, to effect the provisions of this Section 2.17. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Borrower Additional Lenders, be subject to the accuracy in all material respects on the date thereof of the representations and (C) must become an Incremental Term Lender under warranties contained in Article V of this Agreement by execution and delivery of an Incremental Term in any other Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
Document (c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
except (i) no Default or Event to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
such earlier date, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt representation and warranty qualified by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party)materiality, in each which case they shall be true and correct in form and substance reasonably satisfactory all respects); provided that the Lenders providing an Incremental Facility, the proceeds of which are to the Administrative Agent;
(iv) the Administrative Agent shall have received be used primarily to finance a Permitted Acquisition, may agree to waive this requirement as part of customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by “Sungard” limitations. The proceeds of any Incremental Term Lender making an Incremental Term LoanLoans may be used for general corporate purposes (including, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanswithout limitation, Permitted Acquisitions).
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from at any time after the Closing Date to time during request that additional term loans be made hereunder (each such tranche of additional term loans, an “Incremental Term Loan”) in accordance with the term following provisions and subject to the following conditions:
(i) The Borrower shall give the Administrative Agent, which shall promptly deliver a copy thereof to each of this Agreementthe Lenders, at least twenty (20) Business Days’ prior written notice (a “Notice of Incremental Term Loan”) of any such requested Incremental Term Loan specifying the aggregate amount of such Incremental Term Loan (the “Requested Incremental Term Loan Amount”), which shall be at least $10,000,000, the requested date of such Incremental Term Loan (the “Requested Incremental Term Loan Date”) and the date by which the Lenders wishing to participate in such Incremental Term Loan must commit to provide a portion of such Incremental Term Loan (the “Commitment Date”). Each Lender that is willing in its sole discretion to participate in such requested Incremental Term Loan (each an “Incremental Term Loan Lender”) shall give written notice to the Administrative Agent on or prior to the Commitment Date of the amount of such Incremental Term Loan it is willing to provide.
(ii) Promptly following each Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Lenders are willing to provide in respect of the requested Incremental Term Loan. In addition, the Borrower may extend offers to one or more Eligible Assignees, each of which must be reasonably satisfactory to the Administrative Agent, to participate in any portion of the requested Incremental Term Loan; provided, however, that the amount of such Incremental Term Loan provided by each such Eligible Assignee shall be in an amount of not less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof. Any such Eligible Assignee that agrees to provide all or a portion of an Incremental Term Loan pursuant hereto is herein called an “Additional Lender”.
(iii) Effective on the Requested Incremental Term Loan Date, subject to the terms and conditions set forth in this Section 2.17hereof, to request in writing incremental term loans (x) the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more commitment of each Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion Lender and Additional Lender in respect of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to amount determined by the Administrative Agent and the Borrower (but in no event greater than the amount of such Incremental Term Loan which such Lender is willing to provide), (y) each Additional Lender shall enter into an agreement in form and substance satisfactory to the Borrower and the Administrative Agent pursuant to which it shall undertake, as of such Requested Incremental Term Loan Date, a commitment in respect of the applicable Incremental Term Loan in an amount determined by the Administrative Agent and the Borrower (but in no event greater than the amount of such Incremental Term Loan which such Lender is willing to provide), and such Additional Lender shall thereupon be deemed to be a Lender for all purposes of this Agreement and (z) each Incremental Term Loan Lender and each Additional Lender referenced in the immediately foregoing clauses (x) and (y) shall advance to the Borrower on the Requested Incremental Term Loan Date a term loan in an amount equal to its commitment in respect of the applicable Incremental Term Loan as described above, and each such term loan shall be a Loan for all purposes under this Agreement. Each Additional Lender may request a Term Loan Note in accordance with Section 4.5.
(iv) The Incremental Term Loans (A) shall rank pari passu in right of payment with the Three-Year Term Loan and Five-Year Term Loan, (B) shall not mature earlier than the latest Maturity Date (but may have amortization prior to such date), (C) must become an shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the latest maturing Term Loans and (D) shall be treated substantially the same as (and in any event no more favorably than) the Three-Year Term Loan and Five-Year Term Loan; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Lender under this Agreement by execution Loans maturing after the latest Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date and delivery of (2) the Incremental Term Loans may be priced differently than the Three-Year Term Loan and Five-Year Term Loan. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Agreement; providedAmendment”) of this Agreement and, furtheras appropriate, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an the other Loan Documents, executed by the Borrower, each Incremental Term Loan Lender participating in such tranche of Incremental Term Loans, each Additional Lender participating in such tranche of Incremental Term Loans, if any, and the Administrative Agent. The 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 elect be necessary or declineappropriate, in its sole discretionthe reasonable opinion of the Administrative Agent, to provide such Incremental Term Loaneffect the provisions of this Section 4.13.
(cv) The Borrower and may not exercise its rights under this Section 4.13 more than once in each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to successive annual period commencing on the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansClosing Date.
(db) Notwithstanding Anything in this Section 4.13 to the foregoingcontrary notwithstanding, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans hereunder pursuant to this Section shall be provided under this Section 2.17 effective unless:
(i) as of the date of the relevant Notice of Incremental Term Loan and on the relevant Requested Incremental Term Loan Date and after giving effect thereto, (x) no Default or Event of Default shall exist at have occurred and be continuing and (y) the time representations and warranties of the request or at Borrower in Article VI (subject to updating in the time case of the making Section 6.14) shall be true and correct in all material respects as if made on and as of the proposed Incremental Term Loanssuch date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, on or before the relevant Requested Incremental Term Loan Date: (A) certified copies of resolutions of the Board of Directors of the Borrower approving the Incremental Term Loan and closing certificates and other documentation as it shall reasonably request, in each case in form and substance (B) an opinion of counsel for the Borrower reasonably satisfactory to the Administrative Agent; and
(viii) after giving effect to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing Loan the aggregate amount of all such Incremental Term LoansLoans made pursuant to this Section 4.13 after the Closing Date shall not exceed $500,000,000.
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Incremental Term Loans. (a) The At any time, the Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $400,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrower may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of the proposed any Incremental Term LoansLoans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(iiB) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all conditions precedent material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for a Borrowing those which expressly relate to an earlier date) (except in connection with any Consolidated Company Investment not prohibited hereunder; provided that in such case, the representations and warranties set forth in Section 4.02 have been satisfiedSections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(iiiC) [reserved];
(D) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrower and shall be guaranteed with the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each other Extensions of the parties thereto Credit on a pari passu basis;
(or, F) in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Loan (the terms of which shall be set forth in the relevant Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Joinder Agreement):
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Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended by this Section 2.17Amendment), each Incremental Term Lender agrees, severally and not jointly, to request make an Incremental Term Loan to the Borrower in writing incremental term loans a single drawing on the Amendment Effective Date in the principal amount set forth opposite such Incremental Term Lender’s name on Schedule I hereto (the commitment of each Incremental Term Lender to make such Incremental Term Loan being called its “Incremental Term Commitment”). Amounts repaid in respect of Incremental Term Loans may not be reborrowed.
(b) Except as provided herein, the terms of the Incremental Term Loans shall be identical to those of the Term Loans outstanding immediately prior to the effectiveness of this Amendment (the “Incremental Existing Term Loans”). In furtherance of the foregoing, effective as of the Amendment Effective Date, the first sentence of Section 2.10(a) of the Credit Agreement is hereby amended in its entirety to read as follows: “Subject to adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay Term Loan Borrowings on the last day of each March, June, September and December (commencing on December 31, 2014) in the principal amount of Term Loans equal to (i) in the case of any such repayment occurring on December 31, 2014, $4,026,473 and (ii) in the case of any such repayment occurring on or after March 31, 2015, $8,052,946; provided that if any such date is not a Business Day, such payment shall be made under this Agreement by due on the next preceding Business Day.”
(c) Subject to the terms and conditions set forth herein, pursuant to Section 2.20 of the Credit Agreement, and effective as of the Amendment Effective Date, for all purposes of the Loan Documents, (i) the Incremental Term Lenders Commitments shall constitute a Term Commitment Increase established, and the Incremental Term Loans made hereunder shall constitute an increase in the aggregate amount of the Existing Term Loans incurred, in accordance with Section 2.20 of the Credit Agreement (as amended by this Amendment), (ii) the Incremental Term Commitments shall be “Commitments” under the Credit Agreement, (iii) the Incremental Term Loans made pursuant to one the Incremental Term Commitments shall be “Term Loans” under the Credit Agreement and shall constitute Loans of the same Class as the Existing Term Loans, (iv) Borrowings of the Incremental Term Loans shall constitute “Term Loan Borrowings” under the Credit Agreement, including for purposes of repayments due in respect of Term Loan Borrowings under Section 2.10 of the Credit Agreement, and (v) each Incremental Term Lender shall be a “Lender” and a “Term Lender” under the Credit Agreement, shall be a party to the Credit Agreement as a Lender and a Term Lender, shall have all the rights and obligations of, and benefits accruing to, a Lender and a Term Lender under the Credit Agreement and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Term Lenders. Without limiting the foregoing, the Incremental Term Loans made hereunder shall mature on the Term Maturity Date, shall participate in any mandatory or more voluntary prepayments on a pro rata basis with the Existing Term Loans and, subject to paragraph (d) of this Section, shall bear interest at the rate specified in the Credit Agreement as applicable to the Existing Term Loans. Each reference to the Credit Agreement in this paragraph (c) shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
(d) It is the intent of the parties to this Amendment that all Incremental Term Loans made on the Amendment Effective Date be included in each outstanding Borrowing of Existing Term Loans on a pro rata basis. In furtherance of the foregoing, each of the parties hereto agrees that a portion of each Incremental Term Loan Agreements. Such notice shall be allocated to each outstanding Borrowing of Existing Term Loans on a pro rata basis and that the Administrative Agent shall set forth the date on which interest rate applicable to each such Incremental Term Loans are requested Loan allocated to be made (which shall not be less than three (3) Business Days nor more than 60 days after a Eurocurrency Borrowing for the date of such notice (which time periods may be modified or waived at the discretion remainder of the Administrative Agent)existing Interest Period applicable to such Borrowing shall equal the Adjusted LIBO Rate applicable on the Amendment Effective Date to the Existing Term Loans included in such Borrowing plus the Applicable Rate. Subject to the proviso to Section 2.13(d)(ii) and include of the applicable completed Incremental Term Loan Agreement for such Credit Agreement, accrued interest on the portion of the Incremental Term Loans as an attachment theretoincluded in each Borrowing of the Existing Term Loans pursuant to this paragraph shall be payable in arrears on each Interest Payment Date applicable to such Borrowing; provided that, notwithstanding anything to the contrary contained herein above, any conversion or in continuation of any Incremental Borrowing of Term Loan Agreement, such Loans (including the Incremental Term Loans shall mature on included therein), and the Maturity Dateelection of any Interest Period therefor, shall not require occurring prior to the end of any mandatory prepayments thereof and shall not amortize. In connection with any existing Interest Period applicable to such request, the consent Borrowing as of the Administrative Agent Amendment Effective Date shall be required allocated ratably among the Lenders holding all Term Loans (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an including the Incremental Term Loan pursuant to Loans) included in such request) is required to be obtainedBorrowing.
(be) Any such The funding of the Incremental Term Loans to be made hereunder shall be made, at made in the option manner contemplated by Section 2.06 of the BorrowerCredit Agreement. Unless previously terminated, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “the Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeCommitments shall terminate at 5:00 p.m., (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by New York City time, on the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanAmendment Effective Date.
(cf) The Borrower Administrative Agent hereby consents to this Amendment and confirms that each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver not already a Lender under the Credit Agreement immediately prior to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Amendment Effective Date is acceptable to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount in the aggregate from one or more Incremental Term Lenders, all of which must meet the requirements for assignees of Term Loans and Term Loan AgreementsCommitments under Section 9.6(d). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the unused portion of the Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement for and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as an attachment thereto; applicable, except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term other Loan AgreementDocument, such the Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof constitute Obligations hereunder and shall not amortizebe secured by the Collateral on a pari passu basis with all other Obligations). In connection with any such request, Without the prior written consent of the Administrative Agent shall be required Required Lenders, (such consent not to be unreasonably withheld, conditioned or delayed), but no consent i) the final maturity date of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Other Term Loans shall be madeno earlier than the Latest Maturity Date, at (ii) the option Weighted Average Life to Maturity of the BorrowerOther Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity, (iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors, (iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d) and (v) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) one or more existing Lenders and/or the margin above the Eurodollar Rate on such Other Term Loans and (y) one if such Other Term Loans are initially made at a discount or more financial institutions that is not an existing Lender the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (any the amount of such Lender discount or financial institution fee, expressed as a percentage of the Other Term Loans, being referred to in this Section 2.17(b) being called an herein as “Incremental Term LenderOID”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such non-existing differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are Eurodollar 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 Margin then in effect for Tranche A Term Loans and Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender or financial institution (A) must be an Eligible Assignee, (B) must have an as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of at least $5,000,000 unless otherwise agreed the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to by the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under may revise this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide evidence such Incremental Term Loanamendments.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.32 unless on the date of such effectiveness, (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii4.2(a) the Borrower and 4.2(b) shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 3.50 to 1.00 as of the Collateral Documents or most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any amendments thereto that other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall deem have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably necessaryrequested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.1, signed(iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments and (v) the terms and documentation in respect of such Incremental Term Loan Commitments, to the extent applicablenot consistent with this Agreement, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance be reasonably satisfactory to the Administrative Agent;.
(ivd) Each of the parties hereto hereby agrees that the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably requestmay, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making an Loans (other than Other Term Loans), when originally made, are included in each borrowing hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Term Loans. In addition to Borrowings of Revolving Credit Loans and Tranche B Term Loans pursuant to paragraphs (a) The Borrower shall have the right and (b) above, at any time and from time to time during the term of this Agreement, and subject prior to the terms and conditions set forth in this Section 2.17Term Loan Maturity Date, the Borrower may request that one or more Persons (which may include the Lenders) offer to request in writing incremental enter into commitments to make term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which each such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained loan being herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan”) under this paragraph (c); provided , it being understood that if such offer is to be made by any such non-existing Person that is not already a Lender or financial institution (A) must be an Eligible Assigneehereunder, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and shall have consented to such Person being a Lender hereunder to the Borrower and (Cextent such consent would be required pursuant to Section 9.04(b) must become an Incremental Term Lender under this Agreement by execution and delivery in the event of an Incremental Term Loan Agreement; provided, further, assignment to such Person. In the event that no Lender shall be required to become an Incremental Term Lender and any Lender one or financial institution approached to provide an Incremental Term Loan may elect or declinemore of such Persons offer, in its their sole discretion, to provide enter into such Incremental Term Loan.
commitments, and such Persons and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Persons making such offers and the fees (cif any) The to be payable by the Borrower in connection therewith and each Incremental Term Lender that has agreed the amortization and maturity date to provide an Incremental Term Loan pursuant to be applicable thereto, the Borrower, such request Persons and the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement. The Incremental Term Loans to be made pursuant to any such agreement between the Borrower and one or more Lenders in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $25,000,000, (ii) the aggregate principal amount of all Incremental Term Loan Commitments and Incremental Term Loans, together with any Permitted Indebtedness incurred in accordance with Section 6.07(a)(A) after the Effective Date, shall not exceed $300,000,000 or such higher amount to which the Required Lenders shall have consented, (iii) the final maturity for the Incremental Term Loans of any Series shall not be earlier than the Term Loan Maturity Date for Tranche B Term Loans, (iv) the weighted average life to maturity (determined in a manner satisfactory to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as Agent) of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or any Series at the time of the making thereof shall not be shorter than the then-remaining weighted average life to maturity (so determined) of the proposed Tranche B Term Loans and (v) except for the amortization and interest rate to be applicable thereto, and any fees to be paid in connection therewith, the Incremental Term Loans of any Series shall have the same terms as the Tranche B Term Loans, provided that in no event shall the sum of the aggregate amount of Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth , the aggregate amount of increases in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required Revolving Credit Commitments effected pursuant to Section 6.10 hereof 2.06(e) and the Administrative Agent aggregate amount of Permitted Indebtedness incurred in accordance with Section 6.07(a)(A), together with the aggregate amount of Indebtedness incurred pursuant to Section 5(b) of the Pledge Agreement, exceed $300,000,000 or such higher amount to which the Required Lenders shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansconsented.
Appears in 1 contract
Samples: Credit Agreement (Oak Ridger LLC)
Incremental Term Loans. (a) The Borrower shall have may on any date on or after the right from time to time during the term of this AgreementRestatement Effective Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing increase the Additional Term Loans hereunder with incremental term loans (the “"Incremental Term Loans”") be made under this Agreement by Incremental Term Lenders pursuant in an amount not to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived exceed $200,000,000; provided that at the discretion time of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in effectiveness of any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution Amendment referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assigneebelow, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(ia) no Default or Event of Default shall exist at the time of the request have occurred and be continuing on such date or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, after giving effect to the extent applicableextensions of credit to be made on such date, by (b) each of the parties thereto representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (orexcept where such representations and warranties expressly relate to an earlier date, in the which case of any party as to which an executed counterpart such representations and warranties shall not have been received, receipt by the Administrative Agent true and correct in all material respects as of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form earlier date) and substance reasonably satisfactory to the Administrative Agent;
(ivc) the Administrative Agent shall have received customary legal opinionsa certificate to that effect dated such date and executed by a Financial Officer of the Borrower. Incremental Term Loans may be made by any existing Lender or by any other financial institution or any fund that regularly invests in bank loans selected by the Borrower (any such other financial institution or fund being called an "Incremental Lender"), resolutions provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender's or Incremental Lender's making such Incremental Term Loans if such consent would be required under Section 9.6 for an assignment of Loans to such Lender or Incremental Lender. Commitments in respect of Incremental Term Loans shall be made pursuant to an amendment (an "Incremental Term Loan Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Term Loans, if any, each Incremental Lender, if any, and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) . Any Incremental Term Loans made hereunder shall be deemed "Additional Term Loans" hereunder and shall be subject to the extent requested by same terms and conditions applicable to the existing Additional Term Loans. No Lender shall be obligated to provide any Incremental Term Lender making an Loans, unless it so agrees. On the date of any borrowing of Incremental Term LoanLoans, the Borrower shall be deemed to have executed repaid and delivered Incremental Term Notes in favor reborrowed all outstanding Loans as of such Incremental Term Lenders evidencing date (with such Incremental Term reborrowing to consist of the Types of Loans, with related Interest Periods if applicable, specified in a notice to the Administrative Agent (which notice must be received by the Administrative Agent in accordance with the terms of this Agreement). The deemed payments made pursuant to the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.14 if the deemed payment occurs other than on the last day of the related Interest Periods.
Appears in 1 contract
Samples: Credit Agreement (Visteon Corp)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, each Incremental Term Lender agrees, severally and not jointly, to request in writing incremental term loans (the “make Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Loans in Dollars to the Administrative Agent shall Borrower on the Fourth Amendment Effective Date in a principal amount equal to the amount set forth opposite the date on which name of such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified Lender on Schedule I hereto. Amounts paid or waived at the discretion prepaid in respect of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall may not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent be reborrowed.
b) The terms of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madeas set forth in the Credit Agreement, at as amended by this Amendment. Notwithstanding anything to the option contrary in the Credit Agreement, the Incremental Term Loans shall initially be LIBOR Loans that have a LIBOR Period equal to the remaining duration of the BorrowerLIBOR Period then applicable to the Tranche B Term Loans outstanding on the Fourth Amendment Effective Date, and thereafter may be converted or continued as set forth in Section 4.2 of the Credit Agreement, as amended by (xthis Amendment.
c) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “The Incremental Term Lender”); provided that any such non-existing Lender or financial institution Commitments shall automatically terminate on the earlier of (i) the making of the Incremental Term Loans on the Fourth Amendment Effective Date and (ii) 5:00 p.m., New York City time, on December 3rd, 2019.
d) Pursuant to Section 2.3 of the Credit Agreement, (i) the Incremental Term Loans (A) must be an Eligible Assignee, shall constitute Obligations and have all of the benefits thereof and (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed shall be secured by the Liens granted to by the Administrative Agent and for the Borrower benefit of the Secured Parties under the Credit Agreement or any other Credit Document, and (Cii) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute have all of the rights, remedies, privileges and deliver protections applicable to the Administrative Agent an Incremental Term Loan Lenders under the Credit Agreement and such the other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansCredit Documents.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Clearwater Analytics Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right right, at any time and from time to time during after the term of this Agreement, Closing Date by written notice to and subject to in consultation with the terms and conditions set forth in this Section 2.17Administrative Agent, to request in writing incremental commitments (“Incremental Term Loan Commitments”) for additional term loans (each, an “Incremental Term Loan,” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to from existing Lenders, one or more Incremental Persons that are not already Lenders (each, an “Additional Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified Lender”), or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoa combination thereof; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with that (i) any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such request for Incremental Term Loans shall be made, at the option in a minimum amount of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee$25,000,000, (Bii) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver immediately after giving effect to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested making of any Incremental Term Loans.
(d) Notwithstanding , the foregoing, no Incremental Term Loan Agreement shall become effective aggregate of all Revolving Credit Commitment Increases effected and no Incremental Term Loans made after the Closing Date shall be provided under this Section 2.17 unless:
not exceed $75,000,000 (iwithout regard to any repayment of Incremental Term Loans), (iii) no Default or Event of Default shall exist at have occurred and be continuing on the time of the request applicable Incremental Term Loan Effective Date (as hereinafter defined) or at the time of shall result from the making of the proposed any Incremental Term Loans;, and (iv) immediately after giving effect to the making of any Incremental Term Loans and the application of the proceeds thereof, the Borrower shall be in compliance with the financial covenants contained in Article VII, such compliance determined with regard to calculations made on a pro forma basis for the most recently ended Reference Period for which the Administrative Agent and the Lenders have received financial statements and a Compliance Certificate, as if such Incremental Term Loans had been made on the first day of such period. Such notice from the Borrower shall specify the requested amount of Incremental Term Loans. All Incremental Term Loans made on the same day shall be deemed to be a separate “Series” of Incremental Term Loans.
(b) Each Additional Term Lender must qualify as an Eligible Assignee and the Borrower and each Additional Term Lender shall execute all such documentation as the Administrative Agent may reasonably require to evidence the Incremental Term Loan Commitment of such Additional Term Lender and its status as an Incremental Term Lender hereunder.
(c) If Incremental Term Loan Commitments are provided in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Term Loan Effective Date,” which shall be a Business Day) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Term Lenders (and Additional Term Lenders, if any) providing the Incremental Term Loan Commitments of the final allocation of such increase and the Incremental Term Loan Effective Date. Incremental Term Loan Commitments shall become Commitments under this Agreement pursuant to (i) an amendment (each, an “Incremental Term Loan Amendment”) to this Agreement executed by the Borrower, each Lender or Additional Term Lender agreeing to provide such Incremental Term Loan Commitment (and no other Lender shall be required to execute any such amendment), and the Administrative Agent, and (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
any amendments to the other Credit Documents (iii) executed by the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Credit Parties party thereto and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that only) as the Administrative Agent shall reasonably deem reasonably necessary, signed, necessary to the extent applicable, by each of the parties thereto effect such purpose (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by and the Administrative Agent is hereby authorized, on behalf of telegraphicthe Lenders, telecopy, electronic communication to enter into any Incremental Term Loan Amendment or other written confirmation from such party of execution of a counterpart thereof by such partyamendment), in each case under (i) and (ii) above in form and substance reasonably satisfactory to the Administrative Agent. The Incremental Term Loan Commitments shall become effective on the Incremental Term Loan Effective Date referenced in the applicable Incremental Term Loan Amendment, and the Incremental Term Loans provided for thereunder shall be made in accordance with the terms and subject to the conditions set forth therein and in this Section 2.21.
(d) The Incremental Term Loans of any Series shall:
(i) constitute Obligations and Term Loans for all purposes under this Agreement and the other Credit Documents;
(ii) unless otherwise specifically provided in this Agreement or in the applicable Incremental Term Loan Amendment, be secured by the collateral under the Security Documents and guaranteed under the Subsidiary Guaranty on a pari passu basis with all other Obligations (but in no event shall any Incremental Term Loans rank senior in right of payment or security to any other Obligations);
(iii) have a maturity date no earlier than the Term A-1 Loan Maturity Date;
(iv) have such pricing (including interest rate margins and fees) and amortization terms as may be agreed by the Borrower and the Incremental Term Lenders providing such Series of Incremental Term Loans; and
(v) except as specifically provided in clauses (ii) through (iv) above, otherwise have terms and conditions substantially the same as (and in no event more restrictive than the terms and conditions applicable to) Term A-1 Loans (and without limitation of the foregoing, such Incremental Term Loans shall be entitled to the same voting rights as, and shall be entitled to receive proceeds of voluntary and mandatory prepayments on the same basis as, the Term A-1 Term Loans). The proceeds of any Incremental Term Loans shall be used in accordance with Section 2.14.
(e) Notwithstanding anything set forth in this Section 2.21 to the contrary, the Borrower shall not incur any Series of Incremental Term Loans (and no Incremental Term Loan Commitments shall be effective) unless the conditions set forth in Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Term Loan Effective Date:
(i) The Administrative Agent shall have received customary legal opinionsthe following, resolutions each dated the Incremental Term Loan Effective Date and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent:
(A) an Incremental Term Loan Amendment, duly executed by the Borrower and each Incremental Term Lender providing such Incremental Term Loans;
(B) a certificate of a Financial Officer of the Borrower, certifying that (x) as of the Incremental Term Loan Effective Date, all representations and warranties of the Credit Parties contained in this Agreement and the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, both immediately before and after giving effect to the consummation of the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case as of such date), (y) immediately after giving effect to the making of such Incremental Term Loans and the application of the proceeds thereof, the Borrower is in compliance with the financial covenants contained in Article VII, such compliance determined with regard to calculations made on a pro forma basis for the most recently ended Reference Period for which the Administrative Agent and the Lenders have received financial statements and a Compliance Certificate, as if such Incremental Term Loans had been made on the first day of such period (such calculations to be attached to the certificate), and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the making of such Incremental Term Loans and the application of the proceeds thereof; and
(vC) such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested;
(ii) The conditions precedent to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Loans set forth in Section 4.2 shall have been satisfied;
(iii) In the case of any Borrowing of Incremental Term LoansLoans for the purpose of funding a Permitted Acquisition, the applicable conditions set forth in this Agreement with respect to Permitted Acquisitions shall have been satisfied; and
(iv) Any other conditions that may be contained in the applicable Incremental Term Loan Amendment shall have been satisfied.
Appears in 1 contract
Incremental Term Loans. (ai) The Borrower shall have the right from may at any time to time during the term of this Agreement, and subject prior to the terms and Term Loan Maturity Date request one or more Borrowings of additional Term Loans (each, an “Incremental Term Loan”); provided, however, that the Borrower shall not make such a request if the conditions set forth in this Section 2.17, to 2.17(i) are not satisfied. Any such request in writing incremental term loans (shall be submitted by the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Borrower to the Administrative Agent (which shall set forth promptly forward copies to the date on which existing Term Lenders), specify the proposed Incremental Effective Date (as defined below) and amount of such proposed Incremental Term Loan Borrowing and be accompanied by a certificate of a Responsible Officer of the Borrower certifying that no Event of Default exists or will occur as a result of such Incremental Term Loans are requested Loan Borrowing. Only those existing Term Lenders that agree to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed extend an Incremental Term Loan Agreement for as part of such Incremental Term Loans Loan Borrowing (each, an “Incremental Term Lender”) and those New Lenders that agree to extend an Incremental Term Loan as an attachment thereto; provided thatpart of such Incremental Term Loan Borrowing that shall be entitled to receive any fees in connection with such Incremental Term Loan Borrowing. No Term Lender shall have any obligation, notwithstanding anything express or implied, to the contrary contained herein or in offer any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeLoan. In connection with any such request, Only the consent of the Administrative Agent each Incremental Term Lender shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent for an advance of any Lender (other than any Lender providing an Incremental Term Loan pursuant to this Section 2.17(a). No Term Lender that elects not to advance an Incremental Term Loan may be replaced in respect of its existing Term Loan as a result thereof without such request) is required to be obtainedTerm Lender’s written consent.
(bii) Any Incremental Term Loans will be made subject to this Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed (in the case of such amendment to this Agreement) by the Borrower, each Incremental Term Lender, if any, each New Lender, if any, and the Administrative Agent. The Incremental Term Loans shall have terms and conditions substantially identical to those applicable to the Closing Date Term Loans (other than with respect to pricing (provided that the pricing for the Incremental Term Loans shall be madebased on the same “Tiers” and corresponding Total Leverage Ratios (but not necessarily the same Applicable Margins) as is set forth in the then effective definition of Applicable Margin), at the option of the Borrowerarrangement fees, by (x) one or more existing Lenders and/or (y) one or more financial institutions upfront fees and additional fees, amortization, maturity and any different drawing conditions that is not an existing Lender (any such Lender or financial institution referred are agreed to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an the applicable Incremental Term Loan of at least $5,000,000 unless Amendment) and will be otherwise agreed on terms and subject to by conditions reasonably satisfactory to the Administrative Agent Agent. Each Incremental Term Loan Amendment shall, without the consent of any other Lenders, amend the provisions of this Agreement and the other Credit Documents to set forth the terms of the Incremental Term Loans, including the amount and final maturity thereof (which shall not be earlier than the Revolving Loan Maturity Date or the Term Loan Maturity Date), any provisions relating to amortization (it being agreed that the weighted average life of such loans may be no less than the then current weighted average life of the Closing Date Term Loans and that there shall be no provisions for mandatory prepayments of and offers to prepay the Incremental Term Loans (other than on a ratable basis with the Closing Date Term Loans)) and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes as the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to necessary or advisable in connection with such Incremental Term Loans. If the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by Applicable Margin for any Incremental Term Lender making an Incremental Term Loan, Loans payable to the Borrower shall have executed and delivered Incremental Term Notes Lenders in favor respect of such Incremental Term Lenders evidencing Loans exceeds the Applicable Margin for the Closing Date Term Loans (determined as of the July 2017 Amendment Effective Date) by more than 1.00%, then (x) the Applicable Margins for the Closing Date Term Loans shall be increased so that the Applicable Margin for the Closing Date Term Loans (determined as of the July 2017 Amendment Effective Date, but giving effect to such increase in the Applicable Margins) is no more than 1.00% less than the Applicable Margin for such Incremental Term Loans and (y) the Applicable Margins for the Revolving Loans shall be increased by a corresponding amount. For purposes of comparing the Applicable Margins of the Incremental Term Loans and the Closing Date Term Loans, such Applicable Margins shall be calculated in the manner described in the foregoing sentence for each “Tier” of the definition of Applicable Margin (assuming such “Tier” were in effect for the entire term of the Incremental Term Loans and Closing Date Term Loans), and any increase to the Applicable Margins for the Closing Date Term Loans and Revolving Loans shall be made pursuant to the foregoing sentence only with respect to those “Tiers” of the definition of Applicable Margin for which the Applicable Margin for the Closing Date Term Loans is more than 0.50% less than the interest at the corresponding pricing tiers applicable to such Incremental Term Loans. All Incremental Term Loans shall rank pari passu in right of payment with the other Loans and shall benefit equally and ratably from the Security Documents.
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Incremental Term Loans. (a) The Borrower shall have may by written notice to the right from time Agent, up to time four (4) times during the term of this Agreement, and subject elect to the terms and conditions set forth in this Section 2.17, to request in writing incremental establish one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”) be to increase the aggregate amount of all Commitments made under this Agreement by Incremental Term Lenders pursuant to one or not more Incremental than $500,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the New Term Loan Agreements. Such notice to the Administrative Agent Commitments shall set forth be effective, which shall be a date not less than 5 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made the Agent, (which shall not be less than three (3B) Business Days nor more than 60 days after the date amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as Commitments, which must be at least $25,000,000, and (C) the identity of each Lender or other Person that is an attachment thereto; provided thatEligible Assignee (each, notwithstanding anything to the contrary contained herein or in any Incremental a “New Term Loan Agreement, Lender”) to whom such Incremental New Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent Loan Commitments shall be required (allocated and the amounts of such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)allocations; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that, both before and after giving effect to such request shall execute and deliver to the Administrative Agent an Incremental New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
Commitments (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i1) no Default or Event of Default shall exist at the time of the request on such Increase Amount Date before or at the time of after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of the proposed Incremental any New Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 have 5.2 shall be satisfied; (3) the Borrower and the Parent shall be in pro forma compliance with the covenants set forth in Section 9.1 as of the last day of the most recently ended fiscal quarter for which a Compliance Certificate has been satisfied;
delivered after giving effect to such New Term Loan Commitments; (iii4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall have provided Incremental deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. On any Increased Amount Date on which any New Term Loan Cash Collateral as required pursuant Commitments of any Series are effective, subject to Section 6.10 hereof the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Administrative New Term Loans made pursuant thereto. The Agent shall have received copies notify Lenders promptly upon receipt of the Collateral Documents or any amendments thereto that Borrower’s notice of each Increased Amount Date and in respect thereof the Administrative Agent New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments shall deem reasonably necessary, signed, be identical to the extent applicableexisting Term Loans. In any event, the upfront fees applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Loan Documents as may be necessary or appropriate, in the case opinion of any party as the Agent to which an executed counterpart shall not have been received, receipt by effect the Administrative Agent provision of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.9.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, Administrative Agent elect to request the establishment of one or more additional Classes of Term Loans denominated in writing incremental term loans dollars under this Agreement (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements). Such Each such notice to the Administrative Agent shall set forth specify the date (each, an “Incremental Effective Date”) on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at Borrower proposes that the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as agreed by the Administrative Agent); provided that:
(i) before and after giving effect to the borrowing of such Incremental Term Loans on the Incremental Effective Date no Event of Default shall have occurred and be continuing (or, to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other Acquisition, no Specified Default shall have occurred and be continuing);
(ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B-3 Loans outstanding at the option time of such borrowing;
(iii) all other terms applicable to such Incremental Term Loans (other than provisions relating to original issue discount, upfront fees and interest rates, amortization (other than the Maturity Date and subject to clause (ii) above), optional prepayments or redemption terms, in each case, which shall be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Term Loans subject to the proviso contained in the definition of Applicable Margin), shall be on market terms (as determined by the Borrower); provided that, by in the event any financial maintenance covenant is included, which is applicable to any Incremental Term Loans, either (x) one such financial maintenance covenant does not apply until the Term B-3 Loans have been repaid in full or more existing Lenders and/or (y) one or more such financial institutions maintenance covenant shall also apply to the Term B-3 Loans;
(iv) the aggregate principal amount of Incremental Term Loans (other than Refinancing Term Loans) borrowed following the Closing Date, when aggregated with the principal amount of Qualifying Secured Debt and Qualifying Other Debt issued pursuant to clause (v)(ii) of the definition of “Permitted Indebtedness,” would not exceed the Maximum Incremental Amount;
(v) the representations and warranties in this Agreement and the other Loan Documents shall be accurate in all material respects as of the Incremental Effective date (except to the extent that is not an existing Lender (any such representation or warranty relates to a prior date), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other similar Permitted Investments; and
(vi) the Loan Parties and the Collateral Agent shall enter into such amendments to the Security Documents as may be reasonably requested by the Collateral Agent (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement and which may be provided on a post-closing basis) in order to ensure that the Incremental Term Loans are provided with the benefit of the applicable Security Documents and shall deliver such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Collateral Agent.
(b) The Borrower may approach any Lender or financial institution referred any other Person that would be an Eligible Assignee to in this Section 2.17(b) being called an provide all or a portion of the Incremental Term Loans (a “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Incremental Effective Date shall be designated a series (a “Series”) of Incremental Term Loans for all purposes of this Agreement; provided that, subject to the limitations set forth in clause (a) above, any Incremental Term Loans may, to the extent provided in the applicable Incremental Term Loan Amendment, be designated as an increase in any previously established Class of Term Loans.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under established pursuant to an amendment to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Agreement among the time of Borrower, the request or at Administrative Agent and the time of the making of the proposed Incremental Term Loans;
Lenders providing such Incremental Term Loans (iian “Incremental Term Loan Amendment”) all conditions precedent for a Borrowing which shall be consistent with the provisions set forth in Section 4.02 have been satisfied;
clause (iiia) above (but which shall not require the Borrower shall have consent of any other Lender other than those consents provided pursuant this Agreement). Each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Amendment shall be binding on the Lenders, the Loan Parties and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the other parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanshereto.
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Incremental Term Loans. (a) The Borrower shall have and the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such credit facility for making any Incremental Term Loans are requested is hereinafter referred to be made (which shall as the "Incremental Term Facility") on not be less than three (3) Business Days nor more than 60 days after the date 3 occasions and in minimum principal amounts of $5,000,000 and integral multiples of $1,000,000 in excess thereof (or such notice (which time periods other lower amount as may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan AgreementAgents); provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary a written request for such Incremental Term Loan not later than 1:00 p.m. (New York City time) on the date which is 10 Business Days prior to the date of the proposed Incremental Term Loan, (ii) all conditions set forth in Section 5.02 shall have been satisfied and the Administrative Borrower shall have delivered to the Collateral Agent a certificate from an Authorized Officer certifying as to matters set forth in Section 5.02(a), (iii) the Administrative Borrower shall have delivered a certificate of the chief financial officer of the Administrative Borrower, demonstrating on a pro forma basis, as of the end of the most recently ended fiscal quarter for which internally prepared financial statements are available and for the 12 calendar months (on a quarter-by-quarter basis) following the proposed date of making the Incremental Term Loans (A) that the Leverage Ratio of the Parent and its Subsidiaries is equal to or less than 0.25 below the then applicable Leverage Ratio level set forth in Section 7.03(a) and (B) compliance with all then applicable covenants set forth in Section 7.03, (iv) the Borrowers shall have delivered or cause to be delivered any legal opinions, resolutions and other customary closing documents and certificates reasonably requested by any Agent in connection with such transaction and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) any closing fee or other amounts payable to the extent requested by any Agents and the Lenders pursuant to the applicable Incremental Term Lender making an Incremental Term Loan, the Borrower Facility Amendment shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansbeen paid.
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Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Debt Amount from one or more Incremental Term Loan AgreementsLenders, all of which must be Eligible Transferees. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Debt Amount) and (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three five (35) Business Days nor more than 60 sixty (60) days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentnotice)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Initial Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.14 unless (i) no Default or Event on the date of Default shall exist at the time of the request or at the time of such effectiveness and also giving effect to the making of the proposed Incremental Term Loans;
, (iiA) there shall exist no Event of Default (provided that, with respect to any Incremental Term Loans incurred to finance an acquisition or other Investment permitted by this Agreement, the condition pursuant to this clause (c)(i)(A) shall be that there shall exist no Event of Default under Section 10.01 or Section 10.05), (B) all conditions precedent for representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date of such effectiveness (it being understood and agreed that (1) any representation or warranty which by its terms is made as of a Borrowing set forth specified date shall be required to be true and correct in Section 4.02 have been satisfied;
all material respects only as of such specified date and (iii2) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date) (provided that, with respect to any Incremental Term Loans incurred to finance an acquisition or other Investment permitted by this Agreement, the condition in this clause (c)(i)(B) shall be limited to customary “specified representations”) and (C) the Borrower shall have provided Incremental Term Loan Cash Collateral be in compliance, on a Pro Forma Basis, with the covenants set forth in Sections 9.07 and 9.08 as required pursuant of the last day of the Calculation Period most recently ended prior to Section 6.10 hereof such date, and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by an Authorized Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower, signed, to the extent applicable, by each of the parties thereto and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation consistent with those delivered on the Effective Date under Section 5.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, with the agreement of the Borrower, take any and all action as it shall may be reasonably requestnecessary to ensure that all Incremental Term Loans, when originally made, are included in each case in form and substance reasonably satisfactory Borrowing of outstanding Initial Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Loans to be converted into a Borrowing of Base Rate Loans on the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Borrowing of LIBOR Loans on a pro rata basis. Any conversion of a Borrowing of LIBOR Loans to a Borrowing of Base Rate Loans required by the preceding sentence shall be subject to Section 2.11. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, the scheduled amortization payments under Section 4.02(b) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.
Appears in 1 contract
Samples: Credit Agreement (Radio One, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice (each, an “Incremental Request”) to the right Administrative Agent from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to whereupon the Administrative Agent shall set forth promptly make such notice available to each of the Lenders), request the establishment of one or more new term loan commitments (each, an “Incremental Term Commitment”) in an aggregate amount following the Closing Date not to exceed the Incremental Amount from Lenders or additional banks, financial institutions or other institutional lenders as provided below. Each such notice shall specify (i) the amount of the Incremental Term Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the remaining Incremental Amount), and (ii) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Term Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such The Incremental Term Loans Commitments shall be made, at the option become effective as of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Increase Effective Date; provided that any such non-existing Lender or financial institution that:
(Ai) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required obligated to become an provide any Incremental Term Lender Commitment unless it shall have separately agreed to do so, and any Lender or financial institution approached the determination to provide an such commitments shall be within the sole and absolute discretion of such Lender;
(ii) the creation or provision of any Incremental Term Commitment or Incremental Term Loan may elect or decline, shall require the approval of each Initial Lender in its sole discretion, discretion (which approval shall be separate and distinct from such Lender’s discretionary right to agree to provide any portion of any Incremental Term Commitment and any such approval of the Borrower’s incurrence of any Incremental Term Commitment shall not, in and of itself, require or imply that such Lender agrees to provide any portion of such Incremental Term Loan.Commitment);
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall have occurred and be continuing or would exist at the time of the request or at the time of the making of the proposed after giving effect to such Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative AgentCommitments;
(iv) after giving effect to such Incremental Term Commitments, the Administrative Agent representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall have received customary legal opinionsbe true and correct in all material respects (without duplication of materiality) on and as of the Increase Effective Date with the same effect as though such representations and warranties had been made on and as of such; provided that to the extent that a representation and warranty specifically refers to a given date or period, resolutions and closing certificates and other documentation as it shall reasonably requestbe true and correct in all material respects as of such date or period, in each as the case in form and substance reasonably satisfactory to the Administrative Agentmay be; and
(v) if requested by the Initial Lenders, the Lenders shall have received an opinion or opinions of counsel for the Loan Parties, dated the Increase Effective Date and addressed to the extent requested by Administrative Agent and the Lenders, in form and substance acceptable to the Initial Lenders.
(c) The terms and provisions of the Incremental Term Loans made pursuant to Incremental Term Commitments shall be as follows:
(i) except as otherwise set forth herein or in the Increase Joinder, identical to the Loans (it being understood that Incremental Term Loans may be a part of the Loans) except as to maturity and amortization (which shall be subject to the following clauses (ii) and (iii));
(ii) the Weighted Average Life to Maturity of any Incremental Term Lender making an Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then existing Loans; and
(iii) the maturity date of Incremental Term Loan, Loans (the Borrower shall have executed and delivered “Incremental Term Notes Loan Maturity Date”) shall not be earlier than the Maturity Date of the Loans then in favor of such Incremental Term Lenders evidencing such Incremental Term Loanseffect.
Appears in 1 contract
Samples: Credit Agreement (Inseego Corp.)
Incremental Term Loans. The Borrowers and any one or more Lenders (a) The Borrower shall have including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrowers, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms Administrative Agent, may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent, that such Lenders shall make one or more additional term loan facilities available to the Borrowers under this clause (b) of Section 2.1.1 (each an “Incremental Term Loan Facility” and conditions set forth in this Section 2.17collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to the Administrative Agent or Incremental Term Loan Commitment shall set be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the date on specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrowers and the Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which i) the aggregate principal amount of all Incremental Term Loan Commitments shall not exceed the Maximum Incremental Amount; (ii) the Pro Forma Fixed Charge Coverage Ratio must not be less than three 1.05:1.00; (3iii) Business Days nor more than 60 days after the date Stated Maturity Date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental shall be after the later of the Stated Maturity Date for the Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Multi-Draw Term Loans.
; (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiv) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed result after giving effect to any Incremental Term Loans;
Loan; (iiv) the Loan Parties shall be in compliance before and after giving effect to any Incremental Term Loan with all conditions precedent for a Borrowing covenants set forth in the Loan Documents, including the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4; (iiivi) the Borrower shall have provided compliance with clauses (ii) and (v) (calculated after giving effect to any such Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent Loans) shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, be evidenced by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Compliance Certificate delivered to the Administrative Agent;
; (ivvii) the proceeds of any Incremental Term Loan shall be used to acquire additional Domestic Real Property which will become Collateral hereunder subject to a first priority Lien and security interest in favor of the Administrative Agent, for the benefit of the Lender Parties; (viii) with respect to such Domestic Real Property to be acquired, the Administrative Agent and each Lender extending an Incremental Term Loan Commitment shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably approved an appraisal from American Forest Management or another nationally recognized forestry appraisal firm that is satisfactory to the Administrative Agent; and
(vix) the weighted average life of any Incremental Term Loan shall be equal to or greater than the greater of the remaining weighted average life of the Term Loans and the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan; (x) to the extent requested by any that the applicable interest rate margin on such Incremental Term Lender making an Loan exceed by more than 0.25% the applicable interest rate margin for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan, the Borrower applicable interest rate margin for the Term Loans and the Multi-Draw Term Loans shall have executed be increased so that the applicable interest rate margin for the Multi-Draw Term Loans and delivered Incremental Term Notes in favor of for such Incremental Term Lenders evidencing Loan are equal, and the applicable interest rate margin on the Term Loans is not lower than the applicable interest rate margin on such Incremental Term Loan by more than the applicable interest rate margin for the Multi-Draw Term Loans exceeded the applicable interest rate margin for the Term Loan immediately prior to such Incremental Term Loan; (xi) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; and (xii) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans.
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Incremental Term Loans. (ai) The Borrower Company may also utilize part or all of the Aggregate Incremental Capacity to obtain one or more incremental term loans (the “Incremental Term Loans”) as provided herein. Incremental Term Loans may be exchanged by the Company for any of the Company’s Existing Notes, or the cash proceeds of any Incremental Term Loans may be used to repurchase any of the Company’s Existing Notes, for working capital and other general corporate purposes. The Incremental Term Loans shall have constitute Secured Obligations subject to the right from time to time during the term provisions of this AgreementSections 7.03, 7.04 and 7.05 hereof. Each extension of Incremental Term Loans shall be subject to the terms and conditions set forth in this Section 2.172.23(c).
(ii) Each Incremental Term Loan shall be subject to the terms of this Agreement and each of the other Loan Documents and, to request the extent not specified or inconsistent with the terms and conditions set forth herein or therein, the terms and conditions applicable to each Incremental Term Loan shall be set forth in writing incremental term loans a separate amendment agreement (the each an “Incremental Term LoansLoan Amendment”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to among the Administrative Company, the Agent shall set forth the date on which and each lender of such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Loan Lender”), which may, in the Borrower Agent’s sole discretion, include existing Lenders; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached obligated to provide an any Incremental Term Loan may elect or declineas a result of any request by the Company. Unless otherwise agreed by the Required Lenders, in its sole discretion, to provide such Incremental Term Loan.
(cA) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans Amendment shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent (and the Agent shall not be required to seek the direction or consent of the Required Lenders for any such Incremental Term Loan Amendment to the extent such Incremental Term Loan Amendment is not inconsistent with the terms and conditions set forth herein), and (B) no Incremental Term Loan Amendment shall include (1) any terms or conditions of the Incremental Term Loans (other than interest rates and fees, maturity date, amortization (if any) and conditions to effectiveness) that are in conflict with any of the provisions of this Agreement, or (2) any additional covenants or Events of Default or provisions for mandatory prepayment not otherwise provided for herein; provided that such Incremental Term Loan Amendment may provide for assignments and transfers of Incremental Term Loans to third parties (other than any Loan Party, any Sponsor or any of their Affiliates) on terms and conditions other than those specified in Section 9.04 without the consent of the Required Lenders or any other Lender.
(iii) No extension of an Incremental Term Loan shall become effective unless and until each of the following conditions have been satisfied:
(A) the Company, the Agent, and each participating Incremental Term Loan Lender shall have executed and delivered an Incremental Term Loan Amendment and such other loan documentation as the Agent may reasonably require in connection therewith;
(ivB) the Administrative Agent Company shall have received customary legal paid such fees and other compensation to the Incremental Term Loan Lenders as the Company, the Agent and each such Incremental Term Loan Lender may agree;
(C) the Company shall have delivered to the Agent and the Incremental Term Loan Lenders and the other Lenders an opinion or opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and, from counsel to the Company reasonably satisfactory to the Agent (it being agreed that the counsel that delivers the legal opinions on the Effective Date shall be satisfactory to the Agent) and dated such date;
(vD) to the extent requested by any Incremental Term Loan Lender, a promissory note will be issued at the Company’s expense, to each such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.10 (with appropriate modification) to the extent necessary to reflect the Incremental Term Loans of such Incremental Term Loan Lender;
(E) the Company shall have delivered to the Agent (1) the resolutions adopted by the Company approving or consenting to such incurrence of Incremental Term Loans and (2) a certificate of a Responsible Officer of the Company to the effect that, after pro forma application of the extension of the requested Incremental Term Loans, (a) no Event of Default shall have occurred and be continuing, (b) the Company shall be in compliance with the requirements of Section 5.14 hereof (without regard to any Inventory Grace Period), and (c) Excess Availability shall be at least 15% of the lesser of (i) the aggregate Revolving Commitments and (ii) the Borrowing Base;
(F) no Incremental Term Loan shall by its terms be scheduled to mature or require any other payment of principal prior to the date that is at least 90 days after the Maturity Date; provided that Incremental Term Loans may be subject to quarterly scheduled payments of principal in an annual amount not to exceed 1% of the original principal amount of such Incremental Term Loans, with the balance payable at the maturity thereof and may be prepaid pursuant to Section 2.11(a) hereof; and
(G) the Company and the Incremental Term Loan Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably request.
(iv) The Agent shall promptly notify each Lender making an as to the effectiveness of each Incremental Term Loan, and at such time (A) the Borrower aggregate total Commitments under, and for all purposes of, this Agreement shall have executed and delivered Incremental Term Notes in favor be increased by the aggregate amount of such Incremental Term Lenders evidencing Loans, (B) the Commitment Schedule shall be deemed modified, without further action, to reflect the revised Incremental Term Loan Commitments of the Lenders, and (C) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect such increased aggregate total Commitments.
(v) The Company shall cancel and extinguish the Indebtedness under any Existing Notes repurchased with the proceeds of Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementright, and subject upon at least ten Business Days’ prior written notice to the terms and conditions set forth in this Section 2.17Administrative Agent (who shall promptly notify the Lenders), to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to institute one or more Incremental Term Loans (as defined below) at any time prior to the date that is six months prior to the Maturity Date subject to the conditions set forth below:
(i) the aggregate original principal amount of all Incremental Term Loans made pursuant to this Section 2.6 and the aggregate amount of all increases in the Revolving Committed Amount made pursuant to Section 2.7, shall not, in the aggregate, exceed the Incremental Cap at the time such Incremental Term Loans are established;
(ii) the conditions set forth in Section 5.2 shall have been satisfied;
(iii) such requested Incremental Term Loan Agreements. Such notice to shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loan from either existing Lenders and/or one or more other institutions that qualify as an Eligible Assignee (excluding any Affiliate of a Lender) (it being understood and agreed that no existing Lender shall set forth be required to provide an additional commitment) and (B) any Incremental Term Loans shall share ratably in the Collateral and any mandatory prepayments of any existing Incremental Term Loans, except with respect to any upfront or similar fees, amortization and interest rates (including floors) that, in each case, may be agreed to among the Borrower and the lenders providing such Incremental Term Loan. Any Incremental Term Loans that have terms and provisions that differ from those of any existing Incremental Term Loans (if any) outstanding on the date on which such Incremental Term Loans are requested to made shall be made (which designated as a separate tranche of Incremental Term Loans for all purposes of this Credit Agreement and shall not as the context makes appropriate be less than three (3) Business Days nor more than 60 days after deemed and treated herein as Incremental Term Loans except as the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed relevant Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding agreement otherwise provides. Notwithstanding anything herein to the contrary contained herein or in any Incremental Term Loan Agreementcontrary, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such all Incremental Term Loans shall be made, at the option Guaranty Obligations of the BorrowerGuarantors hereunder and will be secured on a pari passu basis, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (and the maturity date of any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan shall be no earlier than the Maturity Date. For the avoidance of at least $5,000,000 unless otherwise agreed to by doubt, the Administrative Agent rate of interest and the Borrower and amortization schedule (Cif applicable) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default determined by the Borrower and the applicable lenders and shall exist at be set forth in the time of the request or at the time of the making of the proposed applicable Incremental Term LoansLoan agreement;
(iiiv) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies all documents (including resolutions of the Collateral Documents or any amendments thereto that board of directors of the Administrative Agent shall deem Borrower and the Guarantors) it may reasonably necessary, signed, request relating to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication corporate or other written confirmation from necessary authority for such party Incremental Term Loan and the validity of execution such institution of a counterpart thereof by such party)Incremental Term Loans, in each case and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) the Administrative Agent scheduled maturity date of the Incremental Term Loan shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to not be earlier than the Administrative AgentMaturity Date;
(vi) [reserved]; and
(vvii) the Credit Parties shall be in compliance with the then applicable Consolidated Net Leverage Ratio and Consolidated Interest Coverage Ratio covenants specified in Section 8.18, in each case, calculated on a Pro Forma Basis after giving effect to such increase and any Loans advanced pursuant thereto. On the extent requested by any effective date of the applicable Incremental Term Loan agreement, each Incremental Term Loan Lender making party thereto severally agrees to make its portion of a term loan (each an “Incremental Term Loan, ”) in a single advance to the Borrower shall have executed and delivered in Dollars in the amount of its Incremental Term Notes Loan commitment as set forth in favor of such Incremental Term Lenders evidencing such Loan agreement. Amounts repaid on the Incremental Term Loans may not be reborrowed. The Incremental Term Loans may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein. The Applicable Percentage of each Incremental Term Loan shall be as set forth in the Incremental Term Loan agreement.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, each Incremental Term Lender agrees, severally and not jointly, to request in writing incremental term loans (the “make Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Loans in Dollars to the Administrative Agent shall Borrower on the Fifth Amendment Funding Date in a principal amount equal to the amount set forth opposite the date on which name of such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoLender on Schedule I hereto; provided thatprovided, that notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreementthe Credit Documents, such prior to the incurrence of Incremental Term Loans shall mature on the Maturity Fifth Amendment Funding Date, each Incremental Term Lender shall not require any mandatory prepayments thereof be entitled to amend Schedule I hereto to reallocate its Incremental Term Commitment among its Affiliates and shall not amortizeApproved Funds. In connection with any such request, the consent Amounts paid or prepaid in respect of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to Loans may not be obtainedreborrowed.
(b) Any such The terms of the Incremental Term Loans shall be madeas set forth in the Credit Agreement, at as amended by this Amendment. Notwithstanding anything to the option contrary in the Credit Agreement, the Incremental Term Loans shall initially be LIBOR Loans that have a LIBOR Period equal to the remaining duration of the BorrowerLIBOR Period then applicable to the Tranche B Term Loans outstanding on the Fifth Amendment Funding Date, and thereafter may be converted or continued as set forth in Section 4.2 of the Credit Agreement, as amended by (xthis Amendment.
c) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “The Incremental Term LenderCommitments shall automatically terminate on the earlier of (i) the making of the Incremental Term Loans on the Fifth Amendment Funding Date and (ii) 5:00 p.m., New York City time, on October 31, 2020 (the “Fifth Amendment Commitment Termination Date”); provided that any such non-existing Lender or financial institution .
d) Pursuant to Section 2.3 of the Credit Agreement, (i) the Incremental Term Loans (A) must be an Eligible Assignee, shall constitute Obligations and have all of the benefits thereof and (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed shall be secured by the Liens granted to by the Administrative Agent and for the Borrower benefit of the Secured Parties under the Credit Agreement or any other Credit Document, and (Cii) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute have all of the rights, remedies, privileges and deliver protections applicable to the Administrative Agent an Incremental Term Loan Lenders under the Credit Agreement and such the other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansCredit Documents.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Clearwater Analytics Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have Pursuant to Section 2.12 of the right from time to time during the term of this Credit Agreement, and subject to the terms and satisfaction of the conditions set forth in this Section 2.172 hereof, to request in writing incremental term loans on and as of the Incremental Effective Date:
(the “a) Each 2016 Incremental Term LoansLender that is an existing Lender under the Credit Agreement (an “Increasing Term Lender”) be made under this Agreement by hereby agrees that upon, and subject to, the occurrence of the Incremental Effective Date, such 2016 Incremental Term Lenders Lender’s Commitment shall be increased, as contemplated by Section 2.12 of the Credit Agreement, by the amount set forth opposite such 2016 Incremental Term Lender’s name under the heading “2016 Incremental Term Commitment” on Schedule 1 to this Incremental Supplement. From and after the Incremental Effective Date, each reference in the Credit Agreement to any Increasing Term Lender’s Commitment shall mean its Commitment, as increased pursuant to one or more this Incremental Term Loan Agreements. Such notice to the Administrative Agent shall Supplement, and as set forth opposite its name on Schedule 1 to this Incremental Supplement under the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedheading “Total Commitment”.
(b) Any such Each 2016 Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions Lender that is not not, prior to the effectiveness of this Incremental Supplement, an existing Lender under the Credit Agreement (any each, an “Additional Term Lender”), hereby agrees that upon, and subject to, the occurrence of the Incremental Effective Date, such 2016 Incremental Term Lender or financial institution referred shall be deemed to in be, and shall become, a “Lender” and an “Incremental Term Lender” for all purposes of, and subject to all the obligations of a “Lender” and/or a “Incremental Term Lender”, respectively, under the Credit Agreement and the other Loan Documents, and shall have an Incremental Term Commitment that is equal to the amount set forth opposite such 2016 Incremental Term Lender’s name under the heading “2016 Incremental Term Commitment” on Schedule 1 to this Section 2.17(b) being called Incremental Supplement. The Borrower and the Administrative Agent hereby agree that from and after the Incremental Effective Date, each Additional Term Lender shall be deemed to be, and shall become, a “Lender” and an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be , as applicable, for all purposes of, and with all the rights and remedies of a “Lender” and/or an Eligible Assignee, (B) must have an “Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by Lender”, as applicable, under, the Administrative Agent Credit Agreement and the Borrower other Loan Documents. From and (C) must become an after the Incremental Effective Date, each reference in the Credit Agreement to any Additional Term Lender’s Commitment or Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender Commitment shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in mean its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan Commitment as committed pursuant to such request shall execute this Incremental Supplement, and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) opposite its name on Schedule 1 to this Incremental Supplement under the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansheading “Total Commitment”.
Appears in 1 contract
Incremental Term Loans. (a) The At any time after the Effective Date, the Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); provided that (1) the total aggregate principal amount for all such Incremental Commitments shall set forth not (as of any date of incurrence thereof) exceed the Maximum Incremental Facilities Amount at such time and (2) the total aggregate principal amount for each Incremental Commitment (and the Incremental Term Loans made thereunder) shall not be less than $25,000,000 (or such lesser amount as may be (x) approved by the Administrative Agent or (y) remaining pursuant to foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Commitment shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as the Administrative Agent may agree to) after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that. The Borrower may invite any Lender, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent Affiliate of any Lender (and/or any Approved Fund, and/or any other than any Lender providing an Incremental Term Loan pursuant Person reasonably satisfactory to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; providedAgent, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any Incremental Commitment shall become effective as of such Increased Amount Date; provided that:
(i) all the conditions in Section 4.2 shall have been met; provided that in connection with an acquisition or investment permitted hereunder or an irrevocable redemption of other Indebtedness permitted hereunder, if agreed to by the respective Incremental Lenders, the Borrower shall only be required to (i) comply with Section 4.2(a), (ii) make customary “Sungard” representations and warranties and (iii) comply with a requirement that no Event of Default under Sections 7.1(a), (b), (i) or (j) shall have occurred and be continuing on the applicable Increased Amount Date or after giving effect to the making of the Incremental Term LoanLoans on such Increased Amount Date.
(cii) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no proceeds of any Incremental Term Loans shall be provided used for the working capital and general corporate purposes (including acquisitions, investments and Restricted Payments permitted under this Section 2.17 unless:
(iAgreement) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfiedBorrower and its Restricted Subsidiaries;
(iii) each Incremental Commitment (and the Borrower shall have provided Incremental Term Loans made thereunder) shall constitute Obligations and Parity Secured Obligations for all purposes under the Loan Cash Collateral as required pursuant to Section 6.10 hereof Documents and shall be secured and guaranteed with the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto other Term Loans hereunder on a pari passu basis;
(or, iv) in the case of any party as each series of Incremental Term Loans (the terms of which shall be set forth in an amendment (an “Incremental Commitment Supplement”) to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case this Agreement in form and substance reasonably satisfactory to the Administrative AgentAgent and the Borrower):
(A) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the initial Term Loans made on the Effective Date or a final maturity date earlier than that of such initial Term Loans;
(ivB) the Applicable Margin, pricing grid, if applicable, and fees for such Incremental Term Loan shall be determined by the applicable Incremental Lenders and the Borrower and set forth in the applicable Incremental Commitment Supplement;
(C) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Term B Loans and, in the case of mandatory prepayment offers required pursuant to Section 2.14, such prepayments offers shall be on made pro rata on the basis of the original aggregate funded amount thereof among the Term B Loans and the Incremental Term Loans (except, in each case, to the extent that the respective Incremental Lenders elect a lesser prepayment);
(D) each series of Incremental Term Loan Commitments shall be effected pursuant to an Incremental Commitment Supplement executed and delivered by the Borrower, the Administrative Agent shall have received customary legal opinionsand the applicable Incremental Lenders (which Incremental Commitment Supplement may, resolutions without the consent of any other Lenders, effect such amendments to this Agreement and closing certificates and the other documentation Loan Documents as it shall reasonably requestmay be necessary or appropriate, in each case in form and substance reasonably satisfactory to the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.25); and
(vE) the Borrower shall deliver or cause to be delivered any customary legal opinions or other customary documents (including, without limitation, a resolution duly adopted by the extent board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Term Loan and/or Incremental Term Loan Commitment) reasonably requested by the Administrative Agent in connection with any such transaction.
(i) Unless otherwise specifically provided herein, all references in the Loan Documents to Term Loans shall be deemed, unless the context otherwise requires, to include references to Incremental Term Loans that are Term Loans made pursuant to this Agreement; provided that such Incremental Term Loan either shall be designated as a separate tranche of Term Loans for all purposes of this Agreement or may be added to a then existing tranche of Term Loans (and thereafter, for all purposes of the Loan Documents, be treated as part of such existing tranche of Term Loans).
(ii) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed or provided for in this Agreement, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(iii) The Incremental Term Loans may be drawn on a delayed draw basis if agreed by the Incremental Lenders providing such Incremental Term Loans.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender making with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(d) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower and the other applicable Loan Parties as may be necessary in order to effectuate the terms of this Section 2.25 (including, without limitation, as applicable, (1) to permit the Incremental Term Loans to share ratably in the benefits of this Agreement and the other Loan Documents and (2) to include the Incremental Term Loan Commitments or outstanding Incremental Term Loans in any determination of Required Lenders). Without limiting the foregoing, in connection with any Incremental Term Loan, the Borrower respective Loan Parties shall have executed (at their expense) amend (and delivered Incremental Term Notes in favor of the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest Stated Maturity so that such Incremental Term Lenders evidencing maturity date is extended to the then latest Stated Maturity (or such Incremental Term Loanslater date as may be advised by local counsel to the Collateral Agent).
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementright, and subject upon at least ten Business Days’ prior written notice to the terms and conditions set forth in this Section 2.17Administrative Agent (who shall promptly notify the Lenders), to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to institute one or more Incremental Term Loans (as defined below) at any time prior to the date that is six months prior to the Maturity Date subject to the conditions set forth below:
(i) the aggregate original principal amount of all Incremental Term Loans made pursuant to this Section 2.6 and the aggregate amount of all increases in the Revolving Committed Amount made pursuant to Section 2.7, shall not, in the aggregate, exceed the Incremental Cap at the time such Incremental Term Loans are established;
(ii) the conditions set forth in Section 5.2 shall have been satisfied;
(iii) such requested Incremental Term Loan Agreements. Such notice shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loan from either existing Lenders and/or one or more other institutions that qualify as an Eligible Assignee (excluding any Affiliate of a Lender) (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) any Incremental Term Loans shall be on terms and pursuant to documentation consistent with the existing Term Loans and shall share ratably in the Collateral and any mandatory prepayments of the existing Term Loans, except with respect to (i) any upfront or similar fees, amortization and interest rates (including floors) that, in each case, may be agreed to among the Borrower and the lenders providing such Incremental Term Loan and (ii) all terms and documentation with respect to any Incremental Term Loan which differ from those with respect to the existing Term Loans shall be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall set forth have the ability to consult with the Requisite Lenders if it deems, in its sole discretion, appropriate. Any Incremental Term Loans that have terms and provisions that differ from those of the existing Term Loans outstanding on the date on which such Incremental Term Loans are requested to made shall be made (which designated as a separate tranche of Term Loans for all purposes of this Credit Agreement and shall not as the context makes appropriate be less than three (3) Business Days nor more than 60 days after deemed and treated herein as Term Loans except as the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed relevant Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding otherwise provides. Notwithstanding anything herein to the contrary contained herein or in any Incremental Term Loan Agreementcontrary, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such all Incremental Term Loans shall be made, at the option Guaranty Obligations of the BorrowerGuarantors hereunder and will be secured on a pari passu basis, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (and the maturity date of any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan shall be no earlier than the Maturity Date. For the avoidance of at least $5,000,000 unless otherwise agreed to by doubt, the Administrative Agent rate of interest and the Borrower and amortization schedule (Cif applicable) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default determined by the Borrower and the applicable lenders and shall exist at be set forth in the time of the request or at the time of the making of the proposed applicable Incremental Term LoansLoan Agreement;
(iiiv) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies all documents (including resolutions of the Collateral Documents or any amendments thereto that board of directors of the Administrative Agent shall deem Borrower and the Guarantors) it may reasonably necessary, signed, request relating to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication corporate or other written confirmation from necessary authority for such party Incremental Term Loan and the validity of execution such institution of a counterpart thereof by such party)Incremental Term Loans, in each case and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) the Administrative Agent scheduled maturity date of the Incremental Term Loan shall have received customary legal opinions, resolutions and closing certificates and other documentation as it not be earlier than the Maturity Date;
(vi) the Weighted Average Life to Maturity of the Incremental Term Loan shall reasonably request, in each case in form and substance reasonably satisfactory to be no shorter than that of the Administrative Agentexisting Tranche A Loans; and
(vvii) the Credit Parties shall be in compliance with the then applicable Consolidated Net Leverage Ratio and Consolidated Interest Coverage Ratio covenants specified in Section 8.18, in each case, calculated on a Pro Forma Basis after giving effect to such increase and any Loans advanced pursuant thereto. On the extent requested by any effective date of the applicable Incremental Term Loan Agreement, each Incremental Term Loan Lender making party thereto severally agrees to make its portion of a term loan (each an “Incremental Term Loan, ”) in a single advance to the Borrower shall have executed and delivered in Dollars in the amount of its Incremental Term Notes Loan Commitment as set forth in favor of such Incremental Term Lenders evidencing such Loan Agreement. Amounts repaid on the Incremental Term Loans may not be reborrowed. The Incremental Term Loans may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein. The Applicable Percentage of each Incremental Term Loan shall be as set forth in the Incremental Term Loan Agreement.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during after the term of this AgreementClosing Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more tranches of term loans (the “Incremental Term Loans”) be made available under this Agreement by Incremental Term Lenders pursuant to the Borrower or one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Subsidiary Borrowers; provided that both at the time of any such non-existing Lender or financial institution (A) must be an Eligible Assigneerequest and upon the effectiveness of any Incremental Amendment referred to below, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist exist. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, no Incremental Term Loan shall be made if, immediately after giving effect to such Incremental Term Loan, the aggregate outstanding principal amount of the Incremental Term Loans, plus the Total Revolving Commitment at such time, would exceed $1,500,000,000. Each Incremental Term Loan shall (a) rank pari passu in right of payment and of security, if any, with the Revolving Credit Loans and the other Incremental Term Loans, if any; (b) be subject to pricing and maturity agreed to by the Borrower and the Lenders providing such Incremental Term Loan; and (c) not be subject to any scheduled or mandatory principal amortization prior to the Maturity Date (other than customary limited amortization for institutional term loans); provided that except for pricing and maturity (as limited by the preceding paragraph (c)), the terms and conditions applicable to the Incremental Term Loans will be as set forth in this Agreement unless otherwise approved by the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.28 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan. In the case of Incremental Term Loans, the Lenders providing such Incremental Term Loans, with the consent of the Administrative Agent, may agree to allow the Borrower and its Subsidiaries and controlled Affiliates to become Eligible Assignees with respect to such Incremental Term Loans under circumstances, terms and conditions to be agreed at the time of incurrence but in all cases subject to Section 10.3(l). Incremental Term Loans may be made and may be provided by any existing Lender (but no Lender will have an obligation to provide any portion of any Incremental Term Loan) or by any other bank or other financial institution, in each case subject to the request or at the time written consent of the making Administrative Agent to the extent the Administrative Agent would have a right under this Agreement to consent to an assignment of all or any portion of any Lender’s Loans or Revolving Commitment to such existing Lender or bank, or other financial institution (any such other bank or other financial institution being called an “Incremental 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 Fundamental Documents, executed by the Borrower, each Lender agreeing to provide such commitment, each Incremental Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the proposed Borrower and the Administrative Agent, effect such amendments to this Agreement and the other Fundamental Documents (including the amendment and restatement thereof and to provide Incremental Lenders with appropriate voting and loan assignment rights and other provisions reflecting the terms of the applicable Incremental Facility) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.28. The Borrower will use the proceeds of the Incremental Term Loans;
(ii) all conditions precedent Loans for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower any purpose not prohibited by this Agreement. No Lender shall have provided be obligated to provide any portion of any Incremental Term Loan Cash Collateral as required pursuant unless it so agrees. Each Incremental Lender shall become party to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt this Agreement upon acceptance by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof an Incremental Lender Supplement signed by such party), Incremental Lender substantially in each case the form of Exhibit G-2.
(b) This Section 2.28 shall supersede any provisions in form and substance reasonably satisfactory Section 10.9 to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanscontrary.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this AgreementAt any time, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Rayonier or ROC may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments to make incremental term loan advances (each such advance, an “Incremental Term Loan Advance”) under one or more additional incremental term loan facilities to be included in this Agreement (each such facility, an “Incremental Term Loan Facility”), or commitments for additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility (such commitments with respect to a new or existing Incremental Term Loan Facility, each individually, an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”). The aggregate amount of the Incremental Term Loan Commitments made with respect to each new Incremental Term Loan Facility or for any additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility shall set forth be, in each case, at least $50,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which Rayonier or ROC proposes that any Incremental Term Loan Commitment(s) shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed . Rayonier or ROC may invite one or more Lenders or new lenders that are Eligible Assignees to provide an Incremental Term Loan Agreement Commitment (any such Person, an “Incremental Term Loan Lender”) for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein Loan Facility. Any Lender or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned Lender offered or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment for all or a portion of any Incremental Term Loan Facility may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(i) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of the proposed any Incremental Term Loans;Loan Advances pursuant thereto; CHAR2\1701593v10
(ii) the Administrative Agent and the Lenders shall have received a certificate of each Borrower, dated as of such date and signed by the chief executive officer, chief financial officer or a senior vice president of such Borrower, (i) certifying and attaching all conditions precedent for necessary resolutions, consents and/or approvals of such Borrower approving or consenting to such new Incremental Term Loan Facility or the making of additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility, as the case may be, and (ii) certifying that, before and after giving effect to such new Incremental Term Loan Facility or making of additional Incremental Term Loan Advances, as the case may be, (A) the representations and warranties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Increased Amount Date (except to the extent applicable to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date and except to the extent such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct as of such date) (except that, in connection with any acquisition not prohibited hereunder, the Incremental Term Loan Lenders may agree that certain representations and warranties need not be true and correct on any date there is a Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility and that, in such case, the only representations and warranties the accuracy of which will be a condition to Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility will be those set forth in Sections 4.01(a), (b), (c), (d), (j), (p) and (r) (the “Specified Representations”) with respect to each Borrower (after giving effect to such acquisition) and such of the representation and warranties made by or on behalf of the company being acquired (or selling assets) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that any Borrower or Subsidiary of a Borrower that a party to such acquisition agreement has the right to terminate its obligations, or decline to consummate the acquisition, under such acquisition agreement as a result of a breach of such representations and warranties), (B) no Default or Event of Default (other than as a result of any Specified Representation having been incorrect in any material respect when made) exists and (C) Rayonier shall be in compliance with the covenants set forth in Section 4.02 5.04 (calculated on a pro forma basis, as of Increased Amount Date but based upon the most recently ended Fiscal Quarter for which financial statements have been satisfiedor are required to have been delivered pursuant to Section 5.01(k));
(iii) the Borrower shall have provided proceeds of any Incremental Term Loan Cash Collateral as required pursuant Advances shall be used solely to Section 6.10 hereof finance timberland acquisitions and/or to refinance existing Debt, and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form pay related fees and substance reasonably satisfactory to the Administrative Agentexpenses;
(iv) each Incremental Term Loan Commitment (and the Administrative Agent Incremental Term Loan Advances made thereunder) shall constitute obligations of Rayonier and/or ROC, as applicable, and shall be guaranteed with all Term Loan Advances on a pari passu basis; CHAR2\1701593v10
(v) after giving effect to any such Incremental Term Loan Advances (including, for purposes of such calculation, the aggregate amount of all Accordion Increases obtained on or prior to such date, assuming that such aggregate Accordion Increase has been fully drawn) on a pro forma basis, Rayonier shall have received customary legal opinions, resolutions a Leverage Ratio no greater than 50%;
(vi) in the case of each Incremental Term Loan Facility (the terms of which shall be set forth in the relevant incremental term loan agreement (the “Incremental Term Loan Amendment”):
(A) the Incremental Term Loan Advances made under such Incremental Term Loan Facility will mature and closing certificates and other documentation as it shall amortize in a manner reasonably request, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent, the Incremental Term Loan Lenders making such Incremental Term Loan Advances and the applicable Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining period until the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective or a maturity date earlier than the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective;
(B) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan Advances shall be determined by the Administrative Agent, the applicable Incremental Term Loan Lenders and the applicable Borrowers on the applicable Increased Amount Date;
(C) all other terms and conditions applicable to any Incremental Term Loan shall be consistent with the terms and conditions applicable to the existing Term Loan Facility; and
(vD) such Incremental Term Loan Advances shall be made available only to Rayonier and/or ROC;
(vii) [reserved];
(viii) such Incremental Term Loan Commitments shall be effected pursuant to an Incremental Term Loan Amendment executed and delivered by the applicable Borrower(s), the Administrative Agent and the applicable Incremental Term Loan Lenders (which Incremental Term Loan Amendment may, without the consent of any other Lenders or Borrower, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.25(b));
(ix) the Incremental Term Loan Lenders shall be included in any determination of the Required Lenders, and, except as otherwise provided in Section CHAR2\1701593v10
8.01 for certain instances, the Incremental Term Loan Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(x) the applicable Borrower(s) shall pay to the extent requested Administrative Agent such fees as may be agreed upon, based on current market conditions, to be retained by the Administrative Agent or distributed to Incremental Term Loan Lenders. On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Term Loan Lender making with an Incremental Term Loan, the Borrower Loan Commitment shall have executed and delivered make an Incremental Term Notes Loan Advance to the applicable Borrower in favor of an amount equal to its Incremental Term Loan Commitment and, if then not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Lenders evidencing such Loan Commitment and the Incremental Term LoansLoan Advance made pursuant thereto.
Appears in 1 contract
Samples: Credit Agreement (Rayonier Inc)
Incremental Term Loans. (ai) The Borrower shall have the right may, by written notice to Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (a) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (b) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)c) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional U.S. Dollar Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental U.S. Dollar Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Requisite Lenders, (a) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (b) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the U.S. Dollar Term Loans and (c) if the initial yield on such Other Term Loans (as determined by Administrative Agent to be equal to the sum of (1) the margin above the Adjusted LIBOR Rate on such Other Term Loans and (2) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Parent, Borrower or any Subsidiary of Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the LIBOR Rate Margin then in effect for U.S. Dollar Term Loans, then the LIBOR Rate Margin then in effect for U.S. Dollar Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(diii) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective under this subsection 2.10 unless (a) on the date of such effectiveness, the conditions set forth in subsections 4.2B(i), (ii), (iii) and no (iv) shall be satisfied, (b) after giving effect to the making of any Incremental Term Loans and the use of the proceeds thereof, Borrower would be in pro forma compliance with the financial covenants set forth in subsections 7.6A and 7.6B as of and for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to subsection 6.1 (assuming for the purposes of subsection 7.6B that such transactions occurred at the end of such period and for the purposes of subsection 7.6A that such transactions occurred at the beginning of such period), (c) Administrative Agent shall have received an Officer’s Certificate of Borrower as to clauses (a) and (b) (with reasonably detailed calculations in the case of clause (b)) dated such date, and (d) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by Administrative Agent and consistent with those delivered on the Restatement Date under subsection 4.1.
(iv) Each of the parties hereto hereby agrees that Administrative Agent may, in consultation with Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing of outstanding U.S. Dollar Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding applicable LIBOR Rate Loan to be converted into a Base Rate Loan on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding applicable LIBOR Rate Loan on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be subject to subsection 2.6. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBOR Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under subsection 2.4A(i) required to be made after the making of such Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt ratably increased by the Administrative Agent aggregate principal amount of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Samples: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)
