Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent: (i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap; (ii) no Default or Event of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof; (iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate. (iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01. (v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement); (vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company; (vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; (b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement. (c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 2 contracts
Samples: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Incremental Term Loans. The Borrower may, on up to two occasions, enter into one or more tranches of term loans (aeach an “Incremental Term Loan”), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all Term Loans (including such increases and all such Incremental Term Loans) does not exceed $100,000,000. The Company Borrower and Agent working cooperatively may arrange for any such tranche to be provided by (i) one or more existing Banks (each such existing Bank so agreeing to participate in such Incremental Term Loans, an “Increasing Bank”), or (ii) one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Bank”; provided that no Ineligible Institution may be an Augmenting Bank), which agree to participate in such Incremental Term Loans; provided that (i) each Augmenting Bank, shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) be subject to the Administrative approval of the Borrower and the Agent and (ii) the Borrower and such Augmenting Bank or Increasing Bank, as applicable, execute a joinder agreement in form and substance reasonably acceptable to the Agent, . No consent of any Bank (other than the Banks participating in any Incremental Term Loan) shall be required for any Incremental Term Loan pursuant to borrow this Section 2.9. Incremental Term Loans subject created pursuant to satisfaction this Section 2.9 shall become effective on the date agreed by the Borrower, the Agent and the relevant Increasing Banks or Augmenting Banks, and the Agent shall notify each Bank thereof. Notwithstanding the foregoing, no tranche of the following conditions precedent:
(i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed be come effective under this paragraph unless, (i) on the Incremental Term Loan Cap;
(ii) no Default or Event of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application proposed date of the proceeds thereof;
(iii) after giving effect to the effectiveness of such Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(ivA) the representations and warranties of the Company and each other Loan Party contained conditions set forth in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections paragraphs (a) and (b) of Section 5.05 6.2 shall be satisfied or waived by the Required Banks and the 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) with the covenants contained in Section 9.12 as if the Indebtedness evidenced by such Incremental Term Loans had been incurred on the first day of the four fiscal quarter period most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1 (a) or (b), and (ii) the Agent shall have received documents and opinions consistent with those delivered on the date hereof as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loans. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Term Loans and shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and be Term Loans hereunder; (b), respectively, ) shall not mature earlier than the Termination Date; provided that the terms and conditions applicable to any tranche of Section 6.01.
(v) such requested Incremental Term Loans shall maturing after the Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only be effective upon receipt by during periods after the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Termination Date. Incremental Term Loans from, at the sole discretion of the Company, one may be made hereunder pursuant to an amendment or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees restatement (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an “Incremental Term Loan Agreement);
(viAmendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Bank participating in such tranche, each Augmenting Bank participating in such tranche, if any, and the Agent. The Incremental Term Loans Loan Amendment may, without the consent of any other Banks, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent, to effect the provisions of this Section 2.9. Nothing contained in this Section 2.9 shall constitute, or otherwise be made deemed to be, a commitment on the same terms and provisions as apply part of any Bank to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the provide Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-at any time. In Yield on the connection with any Incremental Term Loans exceeds pursuant to this Section 2.9, any Augmenting Bank becoming a party hereto shall (1) execute such documents and agreements as the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating and (2) in the case of any Augmenting Bank that is organized under the laws of a jurisdiction outside of the United States of America, provide to the corporate or Agent, its name, address, tax identification number and/or such other information shall be necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required Agent to give effect to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan AgreementPatriot Act.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 2 contracts
Samples: Term Loan Agreement (Otter Tail Corp), Term Loan Agreement (Otter Tail Corp)
Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) Provided there exists no Default or Event of Default shall existDefault, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory notice to the Administrative Agent (which documentation shall take promptly notify the form Lenders and other Eligible Assignees selected by the Domestic Borrower with the approval of an the Administrative Agent (which approval shall not be unreasonably withheld) (any such Eligible Assignees, “Potential Incremental Term Loan AgreementLenders”);
), the Borrowers may from time to time, request Incremental Term Commitments in Dollars in an aggregate amount (vi) the for all such requests including all portions of such increase requests that are allocated as Incremental Term Loans shall be made on pursuant to item (iii) of the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other proviso in Section 2.17(a)) not greater than (1x) any arrangement, upfront and/or administrative fees; $350,000,000 less (2y) the Applicable Rate applicable aggregate amount of increases in the Revolving Credit Facility made pursuant to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative AgentSection 2.17; provided that if the All-In Yield on the (A) any such request for Incremental Term Loans exceeds Commitments shall be in a minimum amount of $25,000,000 and (B) the All-In Yield on Borrowers may make a maximum of five such direct requests (inclusive of any requests made pursuant to Section 2.17). At the Term Loans and Revolving Loans by more than 50 basis points time of sending such notice, the applicable Borrower (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
Administrative Agent) shall specify (viix) the Administrative Agent time period within which each Lender or Potential Incremental Term Lender is requested to respond (which shall have received customary closing certificates and legal opinions and all other documents (including resolutions in no event be less than fifteen Business Days from the date of the board delivery of directors of the Loan Parties) it may reasonably request relating such notice to the corporate or other necessary authority for such Lenders and Potential Incremental Term Loan Lenders), (y) the pricing and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender amortization terms with respect to such Incremental Term Commitments and (z) the applicable Incremental Term Loan FacilityDate.
Appears in 1 contract
Samples: Credit Agreement (Diodes Inc /Del/)
Incremental Term Loans. (a) The Company shall have Parent Borrower may at any time or from time to time after the rightClosing Date, at its election, one time on or prior by notice to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, to borrow an increase of an existing tranche (the “Incremental Term Loans subject to satisfaction Loans”) in favor of the following conditions precedent:
either Borrower in whole or in part; provided that (i) upon the aggregate initial principal amount effectiveness of the any Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) Amendment referred to below, no Default or Event of Default shall exist, or exist and the financial covenants in Section 7.15 would result from such Incremental Term Loan Facility or be satisfied on a pro forma basis for the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) most recent Test Period after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties proposed borrowing of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effectiveLoans and any related transactions, except to (ii) at the extent that time when any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans are made (and after giving effect thereto), no Default shall only be effective upon receipt by exist and (iii) at the Administrative Agent of (A) additional commitments in a corresponding amount of time when any such requested Incremental Term Loans fromare made, at the sole discretion of the CompanySenior Secured Leverage Ratio, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required determined on a pro forma basis after giving effect to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an such Incremental Term Loan Agreement);
(vi) the Loans and any related transactions, shall not exceed 3.5:1. Each tranche of Incremental Term Loans shall be made on in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the same terms limit set forth in the preceding sentence). The Incremental Term Loans (a) shall rank pari passu in right of payment and provisions as apply of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term LoansLoans and (c) shall be treated substantially the same as the Term Loans (in each case, including with respect to maturity datemandatory and voluntary prepayments), amortization provided that (i) the terms and prepayment provisions, conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (1) any arrangement, upfront and/or administrative fees; (2ii) the Applicable Rate interest rates and amortization schedule applicable to the Incremental Term Loans shall be as agreed to determined by the CompanyParent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Term Loans (except to the extent arising by reason of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and Borrower, and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s making such Incremental Term Loans. 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 Borrowers, 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 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 Lenders providing Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term LoansLoan, and (3the borrowing under) other terms that are reasonable acceptable any Incremental Amendment shall be subject to the Administrative Agent; provided satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that if all references to “the Alldate of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower or the Co-In Yield on Borrower, as the case may be, shall use the proceeds of the Incremental Term Loans exceeds for any purpose not prohibited by this Agreement.
(b) In the All-In Yield on event that the interest margins for any Incremental Term Loans are more than 0.25% per annum greater than the Applicable Rates for the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annumLoans, then the Applicable Rate or fees payable by the Company with respect to Rates for the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause so that the All-In Yield on interest margins for the Incremental Term Loans shall not be more than 0.25% per annum greater than the Applicable Rates for the Term Loans; provided that in determining the applicable interest margin for the Term Loans and the Revolving Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) paid by the applicable Borrower or the Arrangers (or their affiliates) to the Lenders of the Term Loans to be 50 basis points (0.50%) less than the All-In Yield on or the Incremental Term Loans in the primary syndication thereof shall be included and equated to interest rate (such increase with OID being equated to be allocated as reasonably determined by interest based on an assumed four-year life to maturity) and (y) any arrangement, underwriting, commitment or other fees payable to the Administrative Agent Arrangers or Agents (or their respective affiliates) in consultation connection with the Company;
Term Loans or to one or more arrangers or underwriters (viior their respective affiliates) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment Loans shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreementexcluded.
(c) Notwithstanding anything This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facilitycontrary.
Appears in 1 contract
Samples: Credit Agreement (Axcan Intermediate Holdings Inc.)
Incremental Term Loans. The Term Loan Borrower may (on behalf of any Borrower) at any time or from time to time, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the "Incremental Term Loans"); provided that both at the time of any such request and upon the effectiveness of any Incremental Term Loan Amendment referred to below, no Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default shall exist and the Company shall be in compliance with Sections 6.12, 6.13 and 6.14, determined on a pro forma basis as if such Incremental Term Loans had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith (and, for purposes of Section 6.12, as if such Incremental Term Loans had been outstanding during the period of four consecutive fiscal quarters then ended). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000. The Incremental Term Loans (a) The Company shall be in an aggregate principal amount not exceeding (i) $250,000,000 minus (ii) the aggregate principal amount of Senior Debt issued after the date hereof in excess of $250,000,000, (b) shall rank pari passu in right of payment and of security 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 the right, at its election, one time on or amortization prior to June 30such date), 2023(d) shall not have a weighted average life that is shorter than that of the Term Loans, upon at least thirty and (30e) Business Days’ prior written notice except as set forth above, shall be treated substantially the same as (or such shorter notice as and in any event no more favorably than) the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject (in each case, including with respect to satisfaction of the following conditions precedent:
mandatory and voluntary prepayments); provided that (i) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Term Loans. Each notice shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and the Borrower in respect thereof. Each existing Lender shall be afforded the opportunity, but shall not be required, to provide a ratable share (including a share of any Incremental Term Loans not subscribed to by other existing Lenders) of any Incremental Term Loans. In the event that existing Lenders provide commitments in an aggregate initial principal amount less than the total amount of the Incremental Term Loans requested by the Term Loan Borrower, the Term Loan Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans shall not exceed the become Commitments under this Agreement pursuant to an amendment (an "Incremental Term Loan Cap;
Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Company (ii) no Default or Event of Default shall existand the applicable Borrower, or would result from if other than the Company), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Term Loan Facility 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. The effectiveness of any Incremental Term Loan thereunder or from Amendment shall be subject to the application satisfaction on the date thereof of each of the proceeds thereof;
conditions set forth in Section 4.02 (iii) after giving effect it being understood that all references to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of "the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Borrowing" in such Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 4.02 shall be deemed to refer to the most recent statements furnished pursuant to clauses (aeffective date of such Incremental Term Loan Amendment) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans other conditions as the parties thereto shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing agree. No Lender shall be required obligated to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) unless it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreementso agrees.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 1 contract
Samples: Credit Agreement (Fisher Scientific International Inc)
Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) Prior to the Administrative Agent, to borrow incurrence of any Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the on a given Incremental Term Loan Cap;
Borrowing Date, Holdings shall have satisfied (iior caused to be satisfied) no Default or Event of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application all of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be applicable conditions set forth in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties Section 1.15. The acceptance of the Company benefits of each Credit Event shall constitute a representation and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt warranty by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory respective Borrower to the Administrative Agent and each of the Lenders that all the conditions specified in Section 5 (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization Credit Events on the Initial Borrowing Date) and prepayment provisions, other than in this Section 6 (1with respect to Credit Events on or after the Initial Borrowing Date) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate and applicable to the Incremental Term Loans shall be such Credit Event are satisfied as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms of that are reasonable acceptable to the Administrative Agenttime; provided that if in determining the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date satisfaction of the Incremental Term loans be increased conditions specified in Section 5, (x) to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans any item is required to be 50 basis points (0.50%) less than satisfactory to any Agent or Lender, such item shall be deemed satisfactory to each Agent or Lender, as the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by case may be, which has not notified the Administrative Agent in consultation with writing prior to the Company;
occurrence of the Initial Borrowing Date that the respective item or matter does not meet its satisfaction and (viiy) in determining whether any Agent or Lender is aware of any fact, condition or event that has occurred and which would reasonably be expected to have a Material Adverse Effect or a material adverse effect of the type described in Section 5.08(a), each Agent or Lender, as the case may be, which has not notified the Administrative Agent in writing prior to the occurrence of the Initial Borrowing Date of such fact, condition or event shall have received customary closing certificates and be deemed not to be aware of any such fact, condition or event on the Initial Borrowing Date. All of the Notes, certificates, legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating and papers referred to the corporate or other necessary authority for such Incremental Term Loan in Section 5 and the validity of such Incremental Facility Term Loanin this Section 6, and any other matters relevant theretounless otherwise specified, all in form and substance reasonably satisfactory shall be delivered to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide Agent at the Notice Office for the Incremental Term Loans) is required to give effect to the borrowing account of each of the Incremental Term LoansLenders and, such amendment shall be effective if executed by except for the Loan PartiesNotes, in sufficient counterparts or copies for each Lender providing an Incremental Term Loan Commitment and included in of the Incremental Term Loan AgreementLenders.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Incremental Term Loans. The Term Loan Borrower may (on behalf of any Borrower) at any time or from time to time, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “Incremental Term Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Term Loan Amendment referred to below, no Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default shall exist and the Company shall be in compliance with Sections 6.12, 6.13 and 6.14, determined on a pro forma basis as if such Incremental Term Loans had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith (and, for purposes of Section 6.12, as if such Incremental Term Loans had been outstanding during the period of four consecutive fiscal quarters then ended). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000. The Incremental Term Loans (a) The Company shall be in an aggregate principal amount not exceeding (i) $375,000,000, or, if (x) the Perbio Reorganization has been consummated, (y) the Total Leverage Ratio is less than 3.50 to 1.00 at the time such Incremental Term Loan is incurred (after giving pro forma effect to the Incremental Term Loan to be incurred) and (z) the Senior Leverage Ratio is less than 3.00 to 1.00 at the time such Incremental Term Loan is incurred (after giving pro forma effect to the Incremental Term Loan to be incurred), $500,000,000 minus (ii) the aggregate principal amount of Senior Debt issued after the Effective Date in excess of $400,000,000 (if the Senior Leverage Ratio is greater than or equal to 3.50 to 1.00 at the time such Incremental Term Loan is incurred (after giving pro forma effect to the Incremental Term Loan to be incurred)), $525,000,000 (if the Senior Leverage Ratio is less than 3.50 to 1.00 but greater than or equal to 3.00 to 1.00 at the time such Incremental Term Loan is incurred (after giving pro forma effect to the Incremental Term Loan to be incurred)) or $650,000,000 (if the Senior Leverage Ratio is less than 3.00 to 1.00 at the time such Incremental Term Loan is incurred (after giving pro forma effect to the Incremental Term Loan to be incurred)), (b) shall rank pari passu in right of payment and of security 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 the right, at its election, one time on or amortization prior to June 30such date), 2023(d) shall not have a weighted average life that is shorter than that of the Term Loans, upon at least thirty and (30e) Business Days’ prior written notice except as set forth above, shall be treated substantially the same as (or such shorter notice as and in any event no more favorably than) the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject (in each case, including with respect to satisfaction of the following conditions precedent:
mandatory and voluntary prepayments); provided that (i) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Term Loans. Each notice shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and the Borrower in respect thereof. Each existing Lender shall be afforded the opportunity, but shall not be required, to provide a ratable share (including a share of any Incremental Term Loans not subscribed to by other existing Lenders) of any Incremental Term Loans. In the event that existing Lenders provide commitments in an aggregate initial principal amount less than the total amount of the Incremental Term Loans requested by the Term Loan Borrower, the Term Loan Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Additional Lender”) to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans shall not exceed the become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Loan Cap;
Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company (ii) no Default or Event of Default shall existand the applicable Borrower, or would result from if other than the Company), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Term Loan Facility 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. The effectiveness of any Incremental Term Loan thereunder or from Amendment shall be subject to the application satisfaction on the date thereof of each of the proceeds thereof;
conditions set forth in Section 4.02 (iii) after giving effect it being understood that all references to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of “the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Borrowing” in such Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 4.02 shall be deemed to refer to the most recent statements furnished pursuant to clauses (aeffective date of such Incremental Term Loan Amendment) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans other conditions as the parties thereto shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing agree. No Lender shall be required obligated to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and unless it so agrees (3) other terms it being acknowledged that are reasonable acceptable the Tranche B-1 Lenders have agreed pursuant to the Administrative Agent; provided that if Amendment and Restatement Agreement to provide the All-In Yield on the Incremental Tranche B-1 Term Loans). The Tranche B-1 Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the constitute Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 1 contract
Samples: Credit Agreement (Fisher Scientific International Inc)
Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) Provided there exists no Default or Event of Default shall existDefault, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory notice to the Administrative Agent (which documentation shall take promptly notify the form Lenders and other Eligible Assignees selected by the Domestic Borrower with the approval of an the Administrative Agent (which approval shall not be unreasonably withheld) (any such Eligible Assignees, “Potential Incremental Term Loan AgreementLenders”);
), the Borrowers may from time to time, request Incremental Term Commitments in Dollars in an aggregate amount (vi) the for all such requests including all portions of such increase requests that are allocated as Incremental Term Loans shall be made on pursuant to item (iii) of the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other proviso in Section 2.17(a)) not greater than (1x) any arrangement, upfront and/or administrative fees; $350,000,000 less (2y) the Applicable Rate applicable aggregate amount of increases in the Revolving Credit Facility made pursuant to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative AgentSection 2.17; provided that if the All-In Yield on the (A) any such request for Incremental Term Loans exceeds Commitments shall be in a minimum amount of $25,000,000 and (B) the All-In Yield on Borrowers may make a maximum of five such direct requests (inclusive of any requests made pursuant to Section 2.17). At the Term Loans and Revolving Loans by more than 50 basis points time of sending such notice, the applicable Borrower (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
Administrative Agent) shall specify (viix) the Administrative Agent time period within which each Lender or Potential Incremental Term Lender is requested to respond (which shall have received customary closing certificates and legal opinions and all other documents (including resolutions in no event be less than fifteen Business Days from the date of the board delivery of directors of the Loan Parties) it may reasonably request relating such notice to the corporate or other necessary authority for such Lenders and Potential Incremental Term Loan Lenders), (y) the pricing and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender amortization terms with respect to such Incremental Term Commitments and (z) the applicable Incremental Term Loan FacilityDate.
Appears in 1 contract
Samples: Credit Agreement (Diodes Inc /Del/)
Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) Borrower may at any time or from time to time after the aggregate initial principal amount Restatement Date, in accordance with and subject to the terms of this Agreement, by notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), increase the size of the Term Loans or request one or more additional tranches of Term Loans (each of which shall be deemed separate and independent tranches from the Initial Term Loan and from each other such additional tranche of term loans unless such additional tranche of term loans has terms identical in all respects or any other then existing tranche of additional Term Loans) to be funded in Dollars (the “Incremental Term Loans Loans”); provided that (w) at the time of any such request no Default or Event of Default shall not exceed exist and at the time that any such Incremental Term Loan Cap;
is made (iiand after giving effect thereto and the use of the proceeds thereof) no Default or Event of Default shall exist, (x) each increase or would result from such new tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $2,500,000 (and in minimum increments of $1,000,000 in excess thereof), and the aggregate principal amount of all Incremental Term Loans funded pursuant to this Section 2.2(b) shall not exceed the Maximum Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
Amount, (iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(ivy) the representations and warranties of the Company and each Loan Parties contained in this Agreement or in the other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties to the extent that they are already qualified or modified by materiality in the text thereof) on and as of the date on which of funding of such Incremental Term Loan Agreement is to become effective, (and after giving effect thereto and the use of proceeds thereof) except to the extent that such representations and warranties specifically refer relate solely to an earlier date, in which case they such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) as of such earlier date, and except (z) after giving effect to the incurrence of any such Incremental Term Loans and the use of proceeds thereof, Borrower would be in compliance on a pro forma basis with the applicable financial covenants set forth in Section 7.1, as then in effect, recomputed as of the last day of the most recently ended fiscal quarter for which the Agent and Lenders have received financial statements in respect of the last fiscal quarter pursuant to Section 5.1 (as if such Incremental Term Loans had been outstanding on the last day of the applicable measurement period in the case of measuring pro forma compliance). Borrower shall deliver to Agent, prior to the effectiveness of any Incremental Term Loan Commitment, a certificate of an authorized officer of the Borrower certifying that all of the conditions set forth in clauses (w) through (z) of the immediately preceding sentence are satisfied after giving effect to any such Incremental Term Loan Commitment and containing reasonably detailed calculations with respect to clause (z).
(ii) The Incremental Term Loans (v) shall rank pari passu or junior in right of payment and of security (if any) with the Initial Term Loan (including, without limitation, with respect to optional prepayments, mandatory prepayments, voting and Sections 2.4(b)(ii) and 2.4(b)(iii)), (w) shall not mature earlier than the Maturity Date, (x) shall not have a shorter weighted average life to maturity than the Initial Term Loan, (y) shall have an interest rate margin, rate floors, fees, premiums and funding discounts as determined by Borrower and Lenders funding the applicable Incremental Term Loans; provided that in the event that the all-in yield (based on the lesser of a 4-year average life to maturity or the remaining life to maturity) for any Incremental Term Loans is greater than the corresponding all-in yield (determined on the same basis) applicable to any Loan by more than fifty (50) basis points (such excess yield, the “Yield Differential”), then the Index Rate Margin and LIBOR Rate Margin, as applicable, for all such Loans shall be increased by an amount equal to the Yield Differential (expressed as a positive number); provided, further, that in determining any yield applicable to the Loans and the Incremental Term Loans, respectively, underlying interest rate floors, interest rate margins, original issue discount (“OID”) and upfront fees (which shall be deemed, for purposes of this Section 4.02provision, to constitute like amounts of OID) payable by Borrower to Lenders of the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to applicable Loans or the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by in the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender primary syndications thereof shall be required included (with OID being equated to provide interest based on an additional commitmentassumed four-year life to maturity) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory arrangement, underwriting or structuring fees paid or payable to the Administrative Agent (which documentation shall take or its Affiliates) in connection with the form of an Incremental Term Loan Agreement);
(vi) applicable Loans or the Incremental Term Loans shall be made on excluded, and (z) may otherwise have terms and conditions different from those of the same initial Term Loans (but subject, in any event, to the terms and provisions as apply of this Agreement pertaining to the Incremental Term Loans, including with respect ).
(iii) Each notice from Borrower pursuant to maturity date, amortization this Section 2.2(b) shall be given in writing and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) shall set forth the Applicable Rate applicable requested amount and proposed terms of the relevant Incremental Term Loans. The opportunity to the fund Incremental Term Loans shall be as agreed offered by Borrower first to the existing Lenders on a pro rata basis and may be made at the election of each such existing Lender (it being understood that no existing Lender will have any obligation to make any portion of any Incremental Term Loan unless it so agrees in writing), and then, to the extent any amounts remain uncommitted to by existing Lenders, such Incremental Term Loans may be made by any other bank, financial institution or other investor that is not an individual (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the CompanyAgent shall have consented to such Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 13.1(a) for an assignment of Loans or Commitments, as applicable, to such Additional Lender (it being agreed that it shall be reasonable if Agent elects not to consent to the making of an Incremental Term Loan by Equity Sponsor or any Control Investment Affiliate of Equity Sponsor, any Loan Party, any holder of any Indebtedness that ranks pari passu with, or is subordinated to, the Administrative Agent and Obligations or any Affiliate of any of the Lenders providing the foregoing Persons).
(iv) Commitments in respect of Incremental Term LoansLoans 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 Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that such Incremental Amendment shall not be effective prior to the date that is five (5) Business Days from the date Agent first receives the notice required pursuant to Section 2.2(b)(i). The Incremental Amendment may, subject to Section 2.2(b)(ii), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of Agent and Borrower, to effect the provisions of this Section 2.2(b). The effectiveness of any Incremental Amendment (and the funding of Incremental Term Loans thereunder) shall be subject to the satisfaction on the date thereof (and the date of funding such Incremental Term Loans) of (x) the terms and conditions of this Section 2.2(b) in respect of the Incremental Term Loan Commitments then being requested and the applicable Incremental Term Loans then being funded and after giving effect thereto and (y) such other conditions as the parties thereto may agree (if any). Borrower will use the All-In Yield on proceeds of the Incremental Term Loans exceeds for any purpose not prohibited by this Agreement, including to finance Permitted Acquisitions and/or Capital Expenditures and any fees, costs and expenses incurred in connection therewith. In the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the event any Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunderare made, such Incremental Term Loan Facility Loans shall not mature and be effective until repaid in amounts and on dates as agreed between Borrower and the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to relevant Lenders of such Incremental Term Loan FacilityLoans in the applicable Incremental Amendment, subject to the requirements set forth in Section 2.2(b). Amounts paid or prepaid on account of any Incremental Term Loans may not be reborrowed. This Section 2.2(b)(iv) shall supersede any provisions in Section 14.1 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Intapp, Inc.)
Incremental Term Loans. (a) The Company shall have the right, at its election, one At any time on or and from time to time prior to June 30the Tranche B-1 Maturity Date, 2023subject to the terms and conditions set forth herein, upon at least thirty (30) Business Days’ prior written the Borrower may, by notice (or such shorter notice as to the Administrative Agent may agree (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches 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, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in its sole discretioncompliance on a Pro Forma Basis with the covenants contained in Sections 6.12, 6.13 and 6.14 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and (C) the Borrower shall have delivered a certificate of a Financial Officer to the Administrative Agenteffect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) contrary herein, the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) no Default or Event $150,000,000. Each tranche of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $50,000,000, provided that such amount may be less than $50,000,000 if such amount represents all the same terms and provisions as apply to remaining availability under the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the aggregate principal amount of Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and set forth above.
(3b) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the The Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%i) per annum, then the Applicable Rate shall rank pari passu or fees payable by the Company with junior in right of payment in respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to Collateral and with the extent necessary to cause Obligations in respect of the All-In Yield on Revolving Commitments, the Tranche A Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Tranche B-1 Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.,
Appears in 1 contract
Incremental Term Loans. (a) The Company shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow Incremental Term Loans subject to satisfaction of the following conditions precedent:
(i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) Provided there exists no Default or Event of Default shall existDefault, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory notice to the Administrative Agent (which documentation shall take promptly notify the form Lenders and other Eligible Assignees selected by the Domestic Borrower with the approval of an the Administrative Agent (which approval shall not be unreasonably withheld) (any such Eligible Assignees, “Potential Incremental Term Loan AgreementLenders”);
), the Borrowers may from time to time, request Incremental Term Commitments in Dollars in an aggregate amount (vi) the for all such requests including all portions of such increase requests that are allocated as Incremental Term Loans pursuant to item (iii) of the proviso in Section 2.17(a)) not greater than (x) $200,000,000 less (y) the aggregate amount of increases in the Revolving Credit Facility made pursuant to Section 2.17; provided that (A) any such request for Incremental Term Commitments shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loansin a minimum amount of $25,000,000, and (3B) other terms that are reasonable acceptable the Borrowers may make a maximum of five such direct requests (inclusive of any requests made pursuant to Section 2.17). At the Administrative Agent; provided that if time of sending such notice, the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points applicable Borrower (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
Administrative Agent) shall specify (viix) the Administrative Agent time period within which each Lender or Potential Incremental Term Lender is requested to respond (which shall have received customary closing certificates and legal opinions and all other documents (including resolutions in no event be less than fifteen Business Days from the date of the board delivery of directors of the Loan Parties) it may reasonably request relating such notice to the corporate or other necessary authority for such Lenders and Potential Incremental Term Loan Lenders), (y) the pricing and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender amortization terms with respect to such Incremental Term Commitments and (z) the applicable Incremental Term Loan FacilityDate.
Appears in 1 contract
Samples: Credit Agreement (Diodes Inc /Del/)
Incremental Term Loans. (a) The Company Borrower shall have the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to consultation and coordination with the Administrative Agent, to borrow request (by written notice to the Administrative Agent) at any time and from time to time after the Initial Borrowing Date, additional term loans to be made pursuant to (and to constitute a part of) on existing Tranche of Term Loans and/or one or more additional Tranches of term loans under this Agreement (the “Incremental Term Loans subject to satisfaction of the following conditions precedent:Loans”); provided that
(i) both at the aggregate initial principal amount time of any such request and upon the effectiveness of any Incremental Term Loans Amendment referred to below, no Default pursuant to Section 10.01 or 10.05 and no Event of Default shall not exceed have occurred and be continuing and at the time that any such Incremental Term Loan Capis made no Default pursuant to Section 10.01 or 10.05 and no Event of Default shall have occurred and be continuing or result therefrom;
(ii) no Default or Event of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the all representations and warranties of contained herein and in the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, 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 and as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees made (it being understood and agreed that no existing Lender (x) any representation or warranty which by its terms is made as of a specified date shall be required to provide be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date);
(iii) the aggregate amount of all Incremental Term Loans made available pursuant to this Section 2.14 shall not exceed the greater of (x) $400 million, and (y) an additional commitmentamount such that the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Four Quarter Period, on a Pro Forma Basis after giving effect to such Incremental Term Loans (and the use of proceeds thereof), does not exceed 3.5:1.00; and
(iv) Holdings shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of Holdings, (A) certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (ii), inclusive, and (B) documentation from each institution providing an additional commitment evidencing its commitment containing the calculations (in reasonable detail) required by the preceding clause (iii).
(b) All Incremental Term Loans (and its obligations all interest, fees and other amounts payable thereon) shall (x) be Obligations under this Agreement and the other applicable Credit Documents, (y) be secured by the relevant Security Documents, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Term Loans and Incremental Term Loans secured by each such Security Document and guaranteed under each such Guaranty and (z) have similar terms as the Term Loans (except that the mandatory prepayments shall be on a no greater than ratable basis with the Term Loans; provided, however, that (i) in the case of a new tranche of Incremental Term Loans, (I) the maturity and amortization of such tranche of Incremental Term Loans may differ, so long as such tranche of Incremental Term Loans shall have (A) a final stated maturity date of no earlier than the Term Loan Maturity Date and (B) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Term Loans, (II) the Effective Yield for such new tranche of Incremental Term Loans may exceed the Effective Yield then applicable to the Term Loans and any other tranche of Incremental Term Loans if the Applicable Margin for the Term Loans and any other tranche of Incremental Term Loans is (or are) increased (to the extent necessary) such that the Effective Yield thereof is not lower than an Effective Yield equal to 0.50% per annum less than the Effective Yield of such new tranche of Incremental Term Loans and (III) the other terms of a given tranche of Incremental Term Loan (including the amortization schedule) shall be as agreed between the Borrower and the Lenders providing such Incremental Term Loans, and (ii) in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) the existing Tranche of Term Loans, (A) such new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Term Loans (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Term Loans, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment proportionately, and (B) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(d) Incremental Term Loans may be made by any existing Lender or by any other bank or other financial institution (other than an Affiliated Lender) (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 12.04(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by Holdings, 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 any other Lenders, 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 and the Borrower, to effect the provisions of this Section (including, in the case of Incremental Term Loans structured as a separate Tranche, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by a majority or supermajority of the Lenders holding the Loans or Incremental Term Loans whose payment rights are being modified).
(e) The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof such conditions as the parties thereto shall agree, including, without limitation, (i) the delivery of an acknowledgement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the and executed by each Guarantor acknowledging that such Incremental Term Loans shall constitute (and be made on included in the same terms definition of) “Guaranteed Obligations,” as applicable, under each Guaranty of such Guarantor, (ii) the delivery by Holdings and provisions as apply its Subsidiaries of such technical amendments, modifications and/or supplements to the Term Loans, including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable to the Incremental Term Loans shall be respective Security Documents as agreed to are reasonably requested by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms to ensure that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase and related Obligations) are secured by, and entitled to be allocated as reasonably determined by the Administrative Agent in consultation with benefits of, the Company;
relevant Security Documents, and (viiiii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions delivery of the board of directors of the Loan Parties) it may reasonably request relating to the corporate an opinion or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loanopinions, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent.
(bf) If any amendment to this Agreement (which is of a technical nature No Lender shall be obligated to provide for the Incremental Term Loans) is required to give effect to the borrowing of the any Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included unless it so agrees in the Incremental Term Loan Agreementits sole discretion.
(cg) Notwithstanding anything This Section 2.14, including any amendments made to the contrary contained hereinCredit Documents to implement the provisions of this Section 2.14, if at shall supersede any time an Incremental Term Loan Facility is being instituted hereunderprovisions in Section 2.07, such Incremental Term Loan Facility shall not be effective until 12.06 or 12.12 to the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facilitycontrary.
Appears in 1 contract
Incremental Term Loans. (a) The Company shall have obligation of each 2021-2 Incremental Term Lender to make the right, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior written notice (or such shorter notice as the Administrative Agent may agree in its sole discretion) to the Administrative Agent, to borrow 2021-2 Incremental Term Loans to be made by it pursuant to Section 3 of this Agreement in accordance with the respective 2021-2 Incremental Term Loan Commitments (such date, the “Incremental Funding Date”) shall be subject to the satisfaction of only the following conditions precedent:
precedent set forth below: (i) the aggregate initial principal amount of the Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
(ii) no Default or Event of Default shall exist, or would result from such Incremental Term Loan Facility or the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iva) the representations and warranties of the Company and each other Loan Party contained set forth in Article V or any other the Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects on and as of the date on which such Incremental Term Loan Agreement is to become effectiveFunding Date; provided that, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects 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 the date of such credit extension or on such earlier date, and except that for purposes of this Section 4.02, as the representations and warranties contained in subsections (a) and case may be; (b) at the time of Section 5.05 shall be deemed to refer and immediately after giving effect to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion borrowing of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an 2021-2 Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loans, including with respect to maturity date, amortization no Default or Event of Default shall have occurred and prepayment provisions, other than (1) any arrangement, upfront and/or administrative feesbe continuing; (2c) the Applicable Rate applicable Borrower shall have paid all fees required to the Incremental Term Loans shall be as agreed paid in connection with this Agreement (such fees to by the Company, be payable in immediately available funds); (d) the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company;
(vii) the Administrative Agent shall have received customary closing certificates payment for all reasonable and legal opinions documented and all other documents (including resolutions invoiced out-of-pocket costs and expenses required to be paid or reimbursed under Section 9.03 of the board of directors of Credit Agreement on the Loan Parties) it may reasonably request relating Amendment No. 6 Effective Date, for which invoices have been presented at least three Business Days prior to the corporate or other necessary authority for such Incremental Term Loan and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative AgentAmendment No. 6 Effective Date;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
Appears in 1 contract
Samples: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Incremental Term Loans. (a) The Company shall have the right, at its election, one At any time on or and from time to time prior to June 30the Latest Maturity Date, 2023subject to the terms and express conditions set forth herein, upon at least thirty (30) the Borrower may by no less than three Business Days’ prior written notice to the Administrative Agent (or such shorter notice as the Administrative Agent may agree in its sole discretion) lesser number of days reasonably acceptable to the Administrative Agent), request to borrow add one or more new credit facilities consisting of one or more additional Tranches of Term Loans or an increase to an existing Tranche of Term Loans (each, an “Incremental Term Loans subject to satisfaction of the following conditions precedent:
Facility”); provided that (i) immediately before and after giving effect to each Incremental Amendment and the aggregate initial principal amount of the applicable Incremental Term Loans shall not exceed the Incremental Term Loan Cap;
Facility, (iiA) no Default or Event of Default shall exist, exists or would result from therefrom to the extent the proceeds of such Incremental Term Loan Facility are not used to finance a Limited Condition Acquisition or (B) no Default or Event of Default arising under Section 8.1(a) or Section 8.1(f) and no other Default or Event of Default the absence of which is a condition required by the Incremental Lenders providing such Incremental Term Facility exists or would result therefrom to the extent the proceeds of such Incremental Term Facility are used to finance a Limited Condition Acquisition; (ii) as a condition to the effectiveness of any Incremental Amendment and any Incremental Term Commitments and the making of the Incremental Term Loan thereunder or from the application Loans thereunder, each of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, the Company and its Subsidiaries shall be in Pro Forma Compliance, as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other made by any Loan Party contained in Article V or any other pursuant to the Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of the date on which such Incremental Term Loan Agreement is to become effective, thereof (except to the extent that such representations and warranties specifically refer to an earlier made as of a specific date, in which case they such representations and warranties shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such earlier specified date) (provided that in the case of an Incremental Term Facility the proceeds of which are used to finance a Limited Condition Acquisition, such requirement shall be subject to customary “specified representations” and except that customary “specified acquisition agreement representations” as agreed by the relevant Incremental Lenders (but in no event shall “specified representations” be more expansive than the representations made by the Borrower in Sections 4.3(a) (with respect to the organizational existence of the Loan Parties only), 4.4, 4.5(a), 4.11, 4.14, 4.19 (as it relates to the creation, validity and perfection of the security interests in the Collateral), 4.20, 4.23(b) (as it relates to the Patriot Act) and 4.23(d)) and any reference to “material adverse effect” in such “specified representations” shall be understood for purposes of this Section 4.02purpose to refer to “material adverse effect” or similar definition in as defined in the main transaction agreement governing such Limited Condition Acquisition), (iii) subject to the provisos to this sentence, the representations amount of Incremental Term Facilities shall not exceed, immediately after giving effect to each Incremental Amendment and warranties contained the applicable Incremental Term Facility, the sum of (1) (x) if such Incremental Term Facility is secured on a pari passu basis with the Liens securing the Obligations, an amount such that the First Lien Secured Leverage Ratio calculated on a pro forma basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1(a) or (b) shall not be greater than 2.00:1.00 (excluding the cash proceeds of any borrowing under such Incremental Term Facility that are to remain on the consolidated balance sheet of the Borrower following application of proceeds to any transaction or transactions to be given pro forma effect with such Incremental Term Facility) or (y) if such Incremental Term Facility is secured on a junior basis to the Liens securing the Obligations or is unsecured or subordinated in subsections right of payment to the Obligations, the Consolidated Leverage Ratio calculated on a pro forma basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1(a) or (ab) shall not be greater than 3.56:1.00 (excluding the cash proceeds of any borrowing under such Incremental Term Facility that are to remain on the consolidated balance sheet of the Borrower following application of proceeds to any transaction or transactions to be given pro forma effect with such Incremental Term Facility) (such Incremental Term Facilities described in the foregoing clauses (1)(x) and (b1)(y), the “Incremental Ratio Debt”) plus (2) the sum of (x) the greater of $75,000,000 and 45% of LTM EBITDA on the date of determination (net of any Indebtedness incurred pursuant to clause (i)(2)(x) of Section 5.05 the first proviso set forth in the definition of Incremental Equivalent Debt) plus (y) the amount of any voluntary prepayments of Term Loans (which shall be deemed for this purpose to refer include the amount of any repurchases of Offer Loans and repurchases of Term Loans in the open market pursuant to Section 10.6(b)(v), in each case limited to the most recent statements furnished amount of cash actually paid in respect of such repurchases), other than to the extent made with the proceeds of long-term Indebtedness (net of any Indebtedness incurred pursuant to clause (i)(2)(y) of the first proviso set forth in the definition of Incremental Equivalent Debt) (such amounts described in the foregoing clauses (a2)(x) and (b2)(y), respectively, the “Incremental Base Amount”); provided that the financial incurrence tests set forth in the foregoing clauses (iii)(1)(x) and (iii)(1)(y) shall not apply to the incurrence of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by Facilities pursuant to the Administrative Agent of (A) additional commitments in a corresponding amount of Incremental Base Amount and any such requested Incremental Term Loans fromFacility may, at the sole discretion of the CompanyBorrower, one be incurred under clauses (iii)(1)(x) and (iii)(1)(y) regardless of whether there is capacity to incur such Incremental Term Facility under clause (iii)(2); and (iv) in the event that the Yield for any Incremental Term Facility incurred on or prior to the 18-month anniversary of the Effective Date that is pari passu in right of payment and with respect to the Collateral with the Initial Term Loans is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for the Initial Term Loans is equal to the Yield for such Incremental Term Facility minus 50 basis points; provided that, in the event an interest rate floor for such Incremental Term Facility is higher than the correlative interest rate floor for the Initial Term Loans, such differential between such floors shall be equated to the applicable Yield for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required but only to the extent that an increase in such interest rate floor with respect to the Initial Term Loans would cause an increase in the interest rate then in effect for the Initial Term Loans at the time of determination hereunder and, in such case, then such interest rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between interest rate floors (the provision in this clause (iv), the “MFN Protection”). For purposes of such calculation of Yield, any Incremental Term Loans that are fixed rate loans shall be swapped to a floating rate on a customary matched maturity basis. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the amount described in the foregoing clauses (iii)(1)(x) and (iii)(1)(y) are calculated without giving effect to any Incremental Term Facilities incurred on a substantially concurrent basis in reliance on the foregoing clause (iii)(2). Each Incremental Term Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth above.
(b) Each Incremental Term Facility (i) if made part of the existing Tranche of Term Loans, shall have terms identical to those applicable to such Term Loans or (ii) if consisting of an additional Tranche of Term Loans, shall have such terms as determined by the Borrower and the Incremental Lenders and/or one providing such Incremental Term Facility; provided that such additional Tranche of Term Loans shall have terms and conditions (excluding pricing, fees, rate floors and optional prepayment or redemption terms) substantially identical to, or (taken as a whole) no more other institutions that qualify favorable (as Eligible Assignees reasonably determined by the Borrower) to the Incremental Lenders providing such additional Tranche of Term Loans than, those applicable to the Initial Term Loans (except to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent (it being understood that to the extent that any financial maintenance covenant is added for the benefit of any additional Tranche of Term Loans, no consent shall be required from the Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the Lenders hereunder) or (2) applicable solely to periods after the Latest Maturity Date). Each Incremental Term Facility shall be secured on a pari passu basis with or junior basis to the Liens securing the Obligations or shall be unsecured or shall be subordinated in right of payment to the Obligations. No Restricted Subsidiary shall be a guarantor with respect to any Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed the Obligations and agreed the obligations in respect of such Incremental Term Facility shall not be secured by Liens on the assets of the Borrower and the Restricted Subsidiaries other than assets constituting Collateral. No Incremental Term Facility secured on a pari passu basis with the Liens securing the Obligations shall have a final maturity date earlier than the then existing Latest Maturity Date. No Incremental Term Facility that is secured on a junior basis to the Liens securing the Obligations or that is unsecured or subordinated in right of payment to the Obligations shall have a final maturity date earlier than 91 days after the then existing Latest Maturity Date, and shall have no greater amortization or mandatory prepayments than the then-remaining Initial Term Loans. No Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans. Subject to the foregoing, Incremental Term Facilities secured on a pari passu basis with the Liens securing the Obligations shall have amortization as determined by the Borrower and the applicable Incremental Lenders. Incremental Term Facilities secured on a pari passu basis with the Liens securing the Obligations shall ratably in any mandatory prepayments of Term Loans unless the Borrower and the applicable Incremental Lenders agree to a less than pro rata share of such mandatory prepayments.
(c) Each notice from the Borrower pursuant to this Section 2.4 shall set forth the requested amount and proposed terms of the relevant Incremental Term Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Incremental Term Commitments under an Incremental Term Facility shall be reasonably satisfactory to the Administrative Agent (to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6, such consent not to be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or other Person being called an “Incremental Lender”) and the Borrower and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, the other Loan Parties, such Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and, to the extent it directly adversely amends or modifies the rights or duties of the Administrative Agent and/or the Collateral Agent, the Administrative Agent and/or the Collateral Agent; provided that if the relevant Incremental Term Facility is not secured on a pari passu basis with the Liens securing the Obligations in respect of the then existing Term Loans, it will be documented pursuant to documentation separate from this Agreement and the Loan Documents, as applicable, and, to the extent such Incremental Term Facility is secured by liens on the Collateral, the agent, representative or trustee in respect of such Incremental Term Facility shall become a party to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent. No Lender shall be required obligated to provide any Incremental Term Commitments under an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations Incremental Term Facility, unless it so agrees. Incremental Term Commitments in respect of any Incremental Term Facilities shall become Commitments under this Agreement. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.4. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new Tranches or sub-tranches in respect of Term Loans made pursuant to this Section 2.4 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Tranches or sub-tranches, in each case on terms consistent with this Section 2.4, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Term Loans to be fungible for United States federal income tax purposes with another Tranche of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder. The effectiveness of any Incremental Amendment shall, unless otherwise agreed to by the applicable Incremental Lenders, be subject to the satisfaction (or waiver) on the date thereof of the express conditions in respect of such Incremental Amendment to be mutually agreed upon by the applicable Incremental Lenders and the Borrower. The proceeds of any Loans under an Incremental Term Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder. This Section 2.4 shall supersede any provisions in Section 10.1 to the contrary.
(d) In connection with the effectiveness of any Incremental Term Facility, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (i) customary legal opinions addressed to the Administrative Agent, the Collateral Agent and the Lenders, board resolutions and officers’ certificates in form and substance reasonably satisfactory to the Administrative Agent and (which documentation shall take the form of an Incremental Term Loan Agreement);
(viii) the Incremental Term Loans shall be made on the same terms and provisions as apply reaffirmation agreements and/or such amendments to the Term Loans, Security Documents (including with respect to maturity date, amortization and prepayment provisions, other than (1) any arrangement, upfront and/or administrative fees; (2) the Applicable Rate applicable modifications to the Incremental Term Loans shall Mortgages), as may be as agreed to by the Company, the Administrative Agent and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agent; provided that if the All-In Yield on the Incremental Term Loans exceeds the All-In Yield on the Term Loans and Revolving Loans by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term Loans and Revolving Loans shall on the effective date of the Incremental Term loans be increased to the extent necessary to cause the All-In Yield on the Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Incremental Term Loans (such increase to be allocated as reasonably determined requested by the Administrative Agent in consultation with order to ensure that the Company;
(vii) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions enforceability of the board of directors Security Documents and the perfection and priority of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Loan Liens thereunder are preserved and the validity of such Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(b) If any amendment to this Agreement (which is of a technical nature to provide for the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loans, such amendment shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreementmaintained.
(c) Notwithstanding anything to the contrary contained herein, if at any time an Incremental Term Loan Facility is being instituted hereunder, such Incremental Term Loan Facility shall not be effective until the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.
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Samples: Credit Agreement (Innoviva, Inc.)
Incremental Term Loans. (a) The Company shall have may at any time or from time to time after the rightRestatement Effective Date, at its election, one time on or prior to June 30, 2023, upon at least thirty (30) Business Days’ prior by written notice (or such shorter notice as to the Administrative Agent may agree in its sole discretion) to (whereupon the Administrative AgentAgent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “Incremental Term Loans”), provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to borrow below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist and (ii) Parent shall be in compliance with each of the covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan and the last day of the most recent completed fiscal quarter of Parent, in each case, as if such Incremental Term Loans subject had been outstanding on the last day of such fiscal quarter of Parent for testing compliance therewith. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to satisfaction of the following conditions precedent:
(i) contrary herein, the aggregate initial principal amount of the Incremental Term Loans shall not exceed the $100,000,000. The Incremental Term Loan Cap;
Loans (iia) no Default or Event shall rank pari passu in right of Default shall exist, or would result from such Incremental Term Loan Facility or payment and of security with the Incremental Term Loan thereunder or from the application of the proceeds thereof;
(iii) after giving effect to the Incremental Term Loans, (b) shall not mature earlier than the Company Term Maturity Date (but may have nominal amortization prior to such date) and its Subsidiaries shall be in Pro Forma Compliance, (c) except as evidenced by a Pro Forma Compliance Certificate.
(iv) the representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewithset forth above, shall be true and correct on and treated substantially the same as of the date on which such Incremental Term Loan Agreement is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) such requested Incremental Term Loans shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loans from, at the sole discretion of the Company, one or more existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) documentation from each institution providing an additional commitment evidencing its commitment and its obligations under this Agreement in form and substance reasonably satisfactory to the Administrative Agent (which documentation shall take the form of an Incremental Term Loan Agreement);
(vi) the Incremental Term Loans shall be made on the same terms and provisions as apply to the Term Loanscase, including with respect to maturity date, amortization mandatory and prepayment provisions, other than voluntary prepayments); provided that (1) any arrangement, upfront and/or administrative fees; (2i) the Applicable Rate terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Arranger and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be as agreed to determined by the Company, the Administrative Agent Company and the Lenders providing the Incremental Term Loans, and (3) other terms that are reasonable acceptable to the Administrative Agentlenders thereof; provided that if the All-In Yield on yield with respect to the Incremental Term Loans exceeds the All-In Yield on the (taking into account upfront fees paid to Incremental Term Loans and Revolving Loans by Loan lenders) may be no more than 50 basis points (0.50%) % per annum, then annum greater than the Applicable Rate or fees payable by the Company then-current yield with respect to the Term Loans and Revolving Loans shall on at the time the Incremental Amendment becomes effective date pursuant to its terms (it being understood that the pricing of the Incremental Term loans Loans will be increased and/or additional fees will be paid to the Term Lenders to the extent necessary to cause satisfy such requirement). Each notice from the All-In Yield on Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and the Revolving Loans to be 50 basis points (0.50%) less than the All-In Yield on the Loans. Incremental Term Loans may be made by any existing Lender (such increase and each existing Term Lender will have the right to be allocated as make a portion of any Incremental Term Loan on terms permitted in this Section 2.20 and otherwise on terms reasonably determined by acceptable to the Administrative Agent in consultation with the Company;
Agent) or by any other bank or other financial institution (vii) any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents consented (including resolutions of the board of directors of the Loan Partiesnot to be unreasonably withheld) it may reasonably request relating to the corporate such Lender’s or other necessary authority for Additional Lender’s making such Incremental Term Loan and the validity Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facility Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory Loans shall become Commitments under this Agreement pursuant to the Administrative Agent;
an amendment (ban “Incremental Amendment”) If any amendment to this Agreement (which is of a technical nature to provide for and, as appropriate, the Incremental Term Loans) is required to give effect to the borrowing of the Incremental Term Loansother Loan Documents, such amendment shall be effective if executed by Parent, the Loan PartiesBorrowers, each Lender providing an Incremental Term Loan Commitment and included in the Incremental Term Loan Agreement.
(c) Notwithstanding anything agreeing to the contrary contained hereinprovide such Commitment, if at any time an Incremental Term Loan Facility is being instituted hereunderany, such Incremental Term Loan Facility shall not be effective until each Additional Lender, if any, and the Administrative Agent shall have received written confirmation from each Lender (which may be delivered via electronic mail) that flood insurance compliance has been completed by such Lender with respect to such Incremental Term Loan Facility.Administrative
Appears in 1 contract
