Institution of Incremental Term Loans. The Borrower may, at any time, upon prior written notice to the Administrative Agent, institute an Incremental Term Loan; provided, that: (A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent; (B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; (C) no Default or Event of Default shall exist and be continuing at the time of any such institution; (D) the Applicable Rate of an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; (E) the Incremental Term Loan Maturity Date with respect to any Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, such date shall not be earlier than the Maturity Date; (F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an Incremental Term Loan shall not be less than the weighted life to maturity of the Term Loan; (G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; (H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists; and (I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Green Dot Corp)
Institution of Incremental Term Loans. The Borrower may, Company may at any time after the SixthNinth Amendment Effective Date and from time to time, upon prior written notice by the Company to the Administrative Agent, institute an one or more Incremental Term LoanFacilities; provided, that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of any such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan Facility shall be in a minimum aggregate principal amount of $10,000,000 10 million (or, if less, the remaining amount of the Incremental Cap) and in integral multiples of $1,000,000 5 million (or, if less, the remaining amount of the Incremental Cap) in excess thereof;
(CB) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(DC) no existing Lender shall be under any obligation to provide an Incremental Term Loan and any such decision whether to provide an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Applicable Rate of an each Incremental Term Loan Facility shall be determined by the applicable Borrower and the Lenders providing Incremental Term Loans under such Incremental Term Facility, as set forth in the applicable Incremental Term Facility Amendment;
(F) the maturity date for any Incremental Term Facility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementFacility Amendment; provided that such date shall not be earlier than the Maturity Date applicable to the Aggregate Revolving Commitments;
(EG) the Incremental Term Loan Maturity Date with respect to scheduled principal amortization payments under any Incremental Term Loan Facility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementFacility Amendment; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an Incremental Term Loan shall not be less than the weighted life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;and
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreementinstitution, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loaninstitution, and (II2) in the case of the BorrowerCompany, certifying that, before immediately prior to and immediately after giving effect to such Incremental Term Loaninstitution, (x) the representations and warranties of the Company and each other Loan Party contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increaseinstitution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists; and
. The institution of each Incremental Term Facility shall be evidenced by an amendment (Ian “Incremental Term Facility Amendment”) a Responsible Officer of to this Agreement, giving effect to the Borrower shall deliver modifications permitted by this Section 2.02(f)(ii) (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of and each Lender providing an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, Facility; and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase Facility Amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Term Facility Amendment shall also require such amendments to the Aggregate Revolving CommitmentsLoan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.02(f)(ii). Neither any Incremental Term Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing Incremental Term Loans under such Incremental Term Facility and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth above and such other conditions as requested by the Lenders providing Incremental Term Loans under such Incremental Term Facility.
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Quanta Services, Inc.)
Institution of Incremental Term Loans. The Borrower may, Company may at any time after the FifthSixth Amendment Effective Date and from time to time, upon prior written notice by the Company to the Administrative Agent, institute an one or more Incremental Term LoanLoansFacilities; provided, that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental institutionIncremental Term Loan Facility shall be in a minimum aggregate principal amount of $10,000,000 10 million (or, if less, the remaining amount of the Incremental Cap) and in integral multiples of $1,000,000 5 million (or, if less, the remaining amount of the Incremental Cap) in excess thereof;
(CB) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(DC) no existing Lender shall be under any obligation to provide an Incremental Term Loan and any such decision whether to provide an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Applicable Rate of an each Incremental Term Loan LoanFacility shall be determined by the applicable Borrower and the Lenders ofproviding Incremental Term Loans under such Incremental Term LoanFacility, as set forth in the applicable Incremental Term LoanFacility Amendment;
(F) the maturity date for any Incremental Term LoanFacility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementLoanFacility Amendment; provided that such date shall not be earlier than the Maturity Date applicable to the Aggregate Revolving Commitments;
(EG) the Incremental Term Loan Maturity Date with respect to scheduled principal amortization payments under any Incremental Term Loan LoanFacility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementLoanFacility Amendment; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, provided that the weighted average life to maturity of an any Incremental Term Loan shall not be less than the remaining weighted average life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect Loans made on the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;Fifth Amendment Effective Date; and
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreementinstitution, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loaninstitution, and (II2) in the case of the BorrowerCompany, certifying that, before immediately prior to and immediately after giving effect to such Incremental Term Loaninstitution, (x) the representations and warranties of the Company and each other Loan Party contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increaseinstitution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), (i) the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.017.01 and (ii) following the Collateral Release (if such event occurs) and prior to the Collateral Reinstatement date (if such date occurs), the representations and warranties contained in Section 6.19 shall not apply, and (y) no Default or Event of Default exists; and
. The institution of each Incremental Term LoanFacility shall be evidenced by an amendment (Ian “Incremental Term LoanFacility Amendment”) a Responsible Officer of to this Agreement, giving effect to the Borrower shall deliver modifications permitted by this Section 2.02(f)(ii) (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of and each Lender providing an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of under such Incremental Term Loan or increase Facility; and such amendmentIncremental Term Facility Amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Term LoanFacility Amendment shall also require such amendments to the Aggregate Revolving Commitments are being used Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to finance a Permitted Acquisition, (x) effect the reference in Section 5.02(a), modifications and credit extensions permitted by this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” 2.02(f)(ii). Neither any Incremental Term LoanFacility Amendment, nor any such amendments to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (other Loan Documents or such other formulation thereof as may new Loan Documents, shall be agreed required to be executed or approved by any Lender, other than the lenders Lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders Loans under such Incremental Term Loan or Facility and the Aggregate Revolving CommitmentsAdministrative Agent, but only in order to be effective. The effectiveness of any Incremental Term LoanFacility Amendment shall be subject to the extent that satisfaction on the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result date thereof of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) each of the proviso conditions set forth above and such other conditions as requested by the Lenders under theproviding Incremental Term Loans established in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of connection therewithunder such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsFacility.
Appears in 1 contract
Institution of Incremental Term Loans. The Borrower may, at any time, upon Upon prior written notice to the Administrative Agent, the Company may institute one or more incremental term loan tranches (each an “Incremental Term Loan”) that are Incremental Term A Loans, at any lxii CHAR1\1792192v4 time prior to the Maturity Date with respect to the Term A Loan, or that are Incremental Term B Loans, at any time prior to the Maturity Date with respect to the Term B3 Loan, (x) in a maximum aggregate amount (for all Incremental Term Loans instituted after the Sixth Amendment Effective Date other than those constituting Additional Incremental Term Loans) of up to the sum of (1) SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) less (2) the amount, if any, of any increase in the Aggregate Revolving A Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (i) above (other than any Additional Aggregate Revolving A Commitments), less (3) the amount, if any, of any increase in the Aggregate Revolving B Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (ii) above (other than any Additional Aggregate Revolving B Commitments); providedand (y) in addition, in an unlimited amount of Incremental Term Loans that are instituted at any time that the Consolidated Leverage Ratio (in each case, giving effect to the incurrence of such Incremental Term Loan any concurrent institution of Additional Aggregate Revolving A Commitments and Additional Aggregate Revolving B Commitments (and treating such Additional Aggregate Revolving A Commitments and Additional Aggregate Revolving B Commitments as fully drawn for such purpose) on a Pro Forma Basis and calculated as of the most recent fiscal quarter end for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b)) is less than 3.00 to 1.00 (each an “Additional Incremental Term Loan”) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(y), (X) the identifiable proceeds of such Incremental Term Loans shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio and (Y) any institution of Incremental Term Loans under clause (f)(iii)(y) above shall be deemed incurred prior to giving effect to any substantially concurrent institution of Incremental Term Loans pursuant to clause (f)(iii)(x) above, any substantially concurrent increase of the Aggregate Revolving A Commitments pursuant to clause (f)(i)(x) above, and any substantially concurrent increase of the Aggregate Revolving B Commitments pursuant to clause (f)(ii)(x) above); provided that:
(A) the Borrower Company (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of each such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan a Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of such institution, or after giving effect to any such institutionIncremental Term Loan;
(D) the Applicable Rate of With respect to any Incremental Term Loan that is an Incremental Term A Loan shall be as set forth in (each of the applicable following is an “Incremental Term A Loan Lender Joinder Agreement;Condition”): CHAR1\1792192v4
(EI) the Incremental Term Loan Maturity Date with respect to any such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, such date shall not be earlier than the Maturity DateDate with respect to the Term A Loan;
(FII) the scheduled principal amortization payments under an such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, the weighted average life Weighted Average Life to Maturity of an such Incremental Term A Loan shall not be less shorter than the weighted life thenremaining Weighted Average Life to maturity Maturity of the Term A Loan;
(GIII) all other terms and conditions applicable to such Incremental Term A Loan must be consistent with thencurrent market terms for tranche A term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent;
(IV) such Incremental Term A Loan shall share ratably in any prepayments of the Term A Loan and any other Incremental Term A Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Loan and other Incremental Term A Loans) and shall have ratable voting rights with the Term A Loan and the other Incremental Term A Loans (or otherwise provide for more favorable voting rights for the then outstanding Term A Loan and other Incremental Term A Loans).
(E) With respect to any Incremental Term Loan that is an Incremental Term B Loan (each of the following is an “Incremental Term B Loan Condition”):
(I) the Incremental Term Loan Maturity Date with respect to such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, such date shall not be earlier than the Maturity Date with respect to the Term B3 Loan;
(II) the scheduled principal amortization payments under such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, the Weighted Average Life to Maturity of such Incremental Term B Loan shall not be shorter than the thenremaining Weighted Average Life to Maturity of the Term B3 Loan;
(III) if the AllInYield on such Incremental Term B Loan exceeds the AllInYield on the Term B3 Loan, the Term B-4 Loan or any other Incremental Term B Loan by more than fifty basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term B3 Loan, the Term B-4 Loan and such other Incremental Term B Loans shall on the effective date of such lxiv CHAR1\1792192v4 Incremental Term B Loan be increased to the extent necessary to cause the AllInYield on the Term B3 Loan, the Term B-4 Loan and such other Incremental Term B Loans to be fifty basis points (0.50%) less than the AllInYield on such Incremental Term B Loan (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company);
(IV) all other terms and conditions applicable to such Incremental Term B Loan must be consistent with thencurrent market terms for tranche B term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent; and
(V) such Incremental Term B Loan shall share ratably in any prepayments of the Term B3 Loan, the Term B-4 Loan and any other Incremental Term B Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term B3 Loan, the Term B-4 Loan and other Incremental Term B Loans) and shall have ratable voting rights with the Term B3 Loan, the Term B-4 Loan and the other Incremental Term B Loans (or otherwise provide for more favorable voting rights for the then outstanding Term B3 Loan, the Term B-4 Loan and other Incremental Term B Loans);
(F) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Lender Joinder Agreement;
(G) a Responsible Officer of the Parent shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to the institution of such Incremental Term Loan Lender Joinder Agreementand any Permitted Acquisition consummated in connection therewith, if applicable, in each case on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(G), the identifiable proceeds of such Incremental Term Loan shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio);
(H) as a condition precedent to such institution of an such Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (Ix) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (IIy) in the case of the BorrowerCompany, certifying that, before and after giving effect to such Incremental Term Loan, (xi) the lxv CHAR1\1792192v4 representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) on and as of the date of such increaseinstitution and effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (yii) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower no existing Lender shall deliver be under any obligation to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of become an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) Lender and (b) as of the most recent fiscal quarter for which the Borrower was required any such decision whether to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such become an Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties Lender shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsLender’s sole discretion.
Appears in 1 contract
Institution of Incremental Term Loans. The Parent Borrower may, at any time and from time to time, upon not less than ten (10) Business Days’ prior written notice by the Parent Borrower to the Administrative AgentAgent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), institute increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit, the Alternative Currency Sublimit or the Foreign Borrower Sublimit) or incur one or more term loans (each an “Incremental Term Loan; provided, that:
”) with (Ai) additional Revolving Commitments from any existing Revolving Lender with a Revolving Commitment or new Revolving Commitments from any other Person selected by the Parent Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons reasonably acceptable to the Administrative Agent, which Lenders shall join in this Agreement as the L/C Issuer and the Swing Line Lender or (ii) one or more Incremental Term Loan Lenders Loans from any existing Lender or from any other Person selected by executing an Incremental Term Loan Lender Joinder Agreement or other agreement the Parent Borrower and reasonably acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in Agent by a minimum maximum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
up to (C) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(Dx) the Applicable Rate greater of an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;
(E) the Incremental Term Loan Maturity Date with respect to any Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an Incremental Term Loan shall not be less than the weighted life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, $250,000,000 and (II) ninety percent (90%) of Consolidated EBITDA for the most recently completed period of four (4) fiscal quarters for which financial statements are available prior to the requested increase in the case Aggregate Revolving Commitments or incurrence of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, Loans (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier dateor, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of event such Incremental Term Loan or increase is incurred in connection with a Limited Condition Transaction, the date of the signing of the Acquisition Agreement with respect thereto) plus (y) the aggregate amount of (I) all voluntary prepayments of Loans made pursuant to Section 2.05(a) (other than prepayments made with the proceeds of revolving Indebtedness) and (II) permanent reductions of the Aggregate Revolving Commitments are being used made pursuant to finance a Permitted Acquisition, Section 2.06(a) as follows: (x) the reference in Section 5.02(ai), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitments.
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Samples: Second Amendment to Third Amended and Restated Credit Agreement (Knoll Inc)
Institution of Incremental Term Loans. The Borrower may, at any time, upon Upon prior written notice to the Administrative Agent, the Company may institute one or more incremental term loan tranches (each an “Incremental Term Loan; ”) that are Incremental Term A Loans, at any time prior to the Maturity Date with respect to the Term A Loan, or that are Incremental Term B Loans, at any time prior to the Maturity Date with respect to the Term B Loan, in a maximum aggregate amount (for all Incremental Term Loans) of up to the sum of (x) FIVE HUNDRED MILLION DOLLARS ($500,000,000) less (y) the amount, if any, of an increase in the Aggregate Revolving A Commitments pursuant to clause (i) above, plus (z) an unlimited amount of Incremental Term B Loans that are instituted at any time that the Consolidated Leverage Ratio (in each case, giving effect to the incurrence of such Incremental Term B Loan on a Pro Forma Basis and calculated as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b)) is less than 3.00 to 1.00, provided, that:
(A) the Borrower Company (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of each such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan a Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of such institution, or after giving effect to any such institutionIncremental Term Loan;
(D) the Applicable Rate of With respect to any Incremental Term Loan that is an Incremental Term A Loan shall be as set forth in (each of the applicable following is an “Incremental Term A Loan Lender Joinder Agreement;Condition”):
(E1) the Incremental Term Loan Maturity Date with respect to any such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, such date shall not be earlier than the Maturity DateDate with respect to the Term A Loan;
(F2) the scheduled principal amortization payments under an such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, the weighted average life Weighted Average Life to Maturity of an such Incremental Term A Loan shall not be less shorter than the weighted life then-remaining Weighted Average Life to maturity Maturity of the Term A Loan;
(G3) all other terms and conditions applicable to such Incremental Term A Loan must be consistent with then-current market terms for tranche A term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent;
(4) such Incremental Term A Loan shall share ratably in any prepayments of the Term A Loan and any other Incremental Term A Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Loan and other Incremental Term A Loans) and shall have ratable voting rights with the Term A Loan and the other Incremental Term A Loans (or otherwise provide for more favorable voting rights for the then outstanding Term A Loan and other Incremental Term A Loans).
(E) With respect to any Incremental Term Loan that is an Incremental Term B Loan (each of the following is an “Incremental Term B Loan Condition”):
(1) the Incremental Term Loan Maturity Date with respect to such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, such date shall not be earlier than the Maturity Date with respect to the Term B Loan;
(2) the scheduled principal amortization payments under such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, the Weighted Average Life to Maturity of such Incremental Term B Loan shall not be shorter than the then-remaining Weighted Average Life to Maturity of the Term B Loan;
(3) if the All-In-Yield on such Incremental Term B Loan exceeds the All-In-Yield on the Term B Loan or any other Incremental Term B Loan by more than fifty basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term B Loan and such other Incremental Term B Loans shall on the effective date of such Incremental Term B Loan be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and such other Incremental Term B Loans to be fifty basis points (0.50%) less than the All-In-Yield on such Incremental Term B Loan (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company);
(4) all other terms and conditions applicable to such Incremental Term B Loan must be consistent with then-current market terms for tranche B term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent; and
(5) such Incremental Term B Loan shall share ratably in any prepayments of the Term B Loan and any other Incremental Term B Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term B Loan and other Incremental Term B Loans) and shall have ratable voting rights with the Term B Loan and the other Incremental Term B Loans (or otherwise provide for more favorable voting rights for the then outstanding Term B Loan and other Incremental Term B Loans);
(F) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Lender Joinder Agreement;
(G) a Responsible Officer of the Parent shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to the institution of such Incremental Term Loan Lender Joinder Agreementand any Permitted Acquisition consummated in connection therewith, if applicable, in each case on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b);
(H) as a condition precedent to such institution of an such Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (Ix) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (IIy) in the case of the BorrowerCompany, certifying that, before and after giving effect to such Incremental Term Loan, (xi) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) on and as of the date of such increaseinstitution and effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (yii) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower no existing Lender shall deliver be under any obligation to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of become an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) Lender and (b) as of the most recent fiscal quarter for which the Borrower was required any such decision whether to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such become an Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties Lender shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitments.Lender’s sole discretion;
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Institution of Incremental Term Loans. The Borrower may, Company may at any time after the Fourth Amendment Effective Date and from time to time, upon prior written notice by the Company to the Administrative Agent, institute an one or more Incremental Term LoanLoans; provided, that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 10 million (or, if less, the remaining amount of the Incremental Cap) and in integral multiples of $1,000,000 5 million (or, if less, the remaining amount of the Incremental Cap) in excess thereof;
(CB) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(DC) the Applicable Rate of no existing Lender shall be under any obligation to provide an Incremental Term Loan and any such decision whether to provide an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(D) (1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Applicable Rate of each Incremental Term Loan shall be determined by the applicable Borrower and the Lenders of such Incremental Term Loan, as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAmendment;
(EF) the Incremental Term Loan Maturity Date with respect to maturity date for any Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAmendment; provided, that, provided that such date shall not be earlier than the Maturity Date;
(FG) the scheduled principal amortization payments under an any Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAmendment; provided, that, provided that the weighted average life to maturity of an any Incremental Term Loan shall not be less than the remaining weighted average life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect Loans made on the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;Fourth Amendment Effective Date; and
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreementinstitution, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loaninstitution, and (II2) in the case of the BorrowerCompany, certifying that, before immediately prior to and immediately after giving effect to such Incremental Term Loaninstitution, (x) the representations and warranties of the Company and each other Loan Party contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increaseinstitution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), (i) the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, 7.01 and (yii) no Default or Event of Default exists; and
following the Collateral Release (Iif such event occurs) a Responsible Officer of the Borrower shall deliver and prior to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to Collateral Reinstatement date (if such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(adate occurs), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties contained in Section 6.19 shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, not apply and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitments.
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Institution of Incremental Term Loans. The Borrower may, at any time, upon prior written notice to the Administrative Agent, institute an Incremental Term LoanLoans as an additional Class of term loans or as an increase to an existing Class of Term Loans; provided, provided that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such any Incremental Term Loan Loans from existing Lenders or other Persons acceptable one or more new Lenders consented to by the Administrative AgentAgent (such consent not to be unreasonably withheld), which provided (1) new Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed an Incremental Term Loan Joinder Agreement or other agreement acceptable Additional Credit Extension Amendment; provided further, that no existing Lender shall be under any obligation to the Administrative Agentprovide Incremental Term Loans and any such decision whether to provide such Incremental Term Loans shall be in such Lender’s sole and absolute discretion;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(D) the Applicable Rate of an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment;
(E) the Incremental Term Loan Maturity Date with respect to any of each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; providedAgreement or other Additional Credit Extension Amendment, that, provided that such date shall not be earlier than the Maturity DateDate applicable to the Term Loan A-1;
(F) the scheduled principal amortization payments under an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment; provided, that, provided that the weighted average life of an each Incremental Term Loan shall not be less than the weighted life to maturity of the Term LoanLoan A-1;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment;
(H) as a condition precedent to such institution of an each Incremental Term Loan and the effectiveness of the applicable each Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such the Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI V and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 5.04 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.016.01, and (y) no Default or Event of Default exists; and;
(I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary7.14, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to each Incremental Term Loan on a Pro Forma Basis;
(J) the incurrence of Total Leverage Ratio shall be less than 3.00:1.00, after giving effect to each Incremental Term Loan on a Pro Forma Basis; and
(K) the Borrower shall pay any applicable fees related to such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsLoan.
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Institution of Incremental Term Loans. The Borrower may, at any time, upon ten Business Days prior written notice to the Administrative Agent, institute one or more tranches of additional term loans (each an “Incremental Term Loan”); provided, provided that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan the increase from existing Lenders or other Persons reasonably acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement reasonably acceptable to the Administrative Agent; it being understood that no existing Lender shall be under any obligation to make an Incremental Term Loan and any such decision whether to make an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event the aggregate amount of Default Incremental Term Loans shall exist and be continuing at not exceed $0, unless consented to in writing by the time of any such institutionRequired Lenders in accordance with Section 11.01;
(D) the Applicable Rate of an applicable Incremental Term Loan Maturity Date for each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided that such date shall not be earlier than the Maturity Date;
(E) the Incremental Term Loan Maturity Date with respect to any scheduled principal amortization payments under each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an documentation governing each Incremental Term Loan shall not be less contain any covenants, defaults or other similar provisions (other than the weighted life provisions relating to maturity of the Term Loaneconomic terms);
(G) each Incremental Term Loan Lender, if not already a Lender hereunder, shall become a party to this Agreement;
(H) Schedule 2.01 shall be deemed revised to reflect the commitments Commitments and commitment percentages Applicable Percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable each Incremental Term Loan Lender Joinder Agreement;
(HI) as a condition precedent to such institution of an each Incremental Term Loan and the effectiveness of the applicable each Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness of any Incremental Term Loan (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (II2) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, date and (y) no Default or Event of Default exists; and;
(IJ) as a Responsible Officer condition precedent to each Incremental Term Loan and the effectiveness of each Incremental Term Loan Agreement, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate certificate demonstrating that, upon giving effect to such Incremental Term Loan on a Pro Forma Effect to such institution of an Incremental Term LoanBasis, the Loan Parties would be in compliance with the financial covenants covenant set forth in Sections 8.11(a) and (b) Section 8.11 as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained ; and
(K) if any new or supplemental regulatory approval by any applicable regulatory body is required in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of connection with such Incremental Term Loan or increase Loan, the Administrative Agent shall have received evidence, in form and substance satisfactory to the Aggregate Revolving Commitments are being used to finance a Permitted AcquisitionAdministrative Agent, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitmentsapproval.
Appears in 1 contract
Samples: Credit Agreement (Energen Corp)
Institution of Incremental Term Loans. The Borrower may, at any time, upon Upon prior written notice to the Administrative Agent, the Company may institute one or more incremental term loan tranches (each an “Incremental Term Loan; provided”) that are Incremental Term A Loans, that:
at any time prior to the Maturity Date with respect to the Term A Loan, or that are Incremental Term B Loans, at any time prior to the Maturity Date with respect to the Term B‑3 Loan, (Ax) in a maximum aggregate amount (for all Incremental Term Loans instituted after the Sixth Amendment Effective Date other than those constituting Additional Incremental Term Loans) of up to the sum of (1) SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) less (2) the Borrower amount, if any, of any increase in the Aggregate Revolving A Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (i) above (other than any Additional Aggregate Revolving A Commitments), less (3) the amount, if any, of any increase in the Aggregate Revolving B Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (ii) above (other than any Additional Aggregate Revolving B Commitments); and (y) in addition, in an unlimited amount of Incremental Term Loans that are instituted at any time that the Consolidated Leverage Ratio (in consultation and coordination with each case, giving effect to the Administrative Agent) shall obtain commitments for the amount incurrence of such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such concurrent institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 Additional Aggregate Revolving A Commitments and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(D) the Applicable Rate of an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;
(E) the Incremental Term Loan Maturity Date with respect to any Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an Incremental Term Loan shall not be less than the weighted life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects Additional Aggregate Revolving B Commitments (and in all respects if any treating such representation or warranty is already qualified by materiality or reference to Material Adverse EffectAdditional Aggregate Revolving A Commitments and Additional Aggregate Revolving B Commitments as fully drawn for such purpose) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) Basis and (b) calculated as of the most recent fiscal quarter end for which the Borrower Company was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything ) is less than 3.00 to 1.00 (each an “Additional Incremental Term Loan”) (it being understood and agreed that for purposes of calculating the contrary contained in Consolidated Leverage Ratio under this Section 2.02(fclause (f)(iii)(y), (X) or the definition of “Permitted Acquisitions” to the contrary, if the identifiable proceeds of such Incremental Term Loan or Loans shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio and (Y) any institution of Incremental Term Loans under clause (f)(iii)(y) above shall be deemed incurred prior to giving effect to any substantially concurrent institution of Incremental Term Loans pursuant to clause (f)(iii)(x) above, any substantially concurrent increase to of the Aggregate Revolving A Commitments are being used pursuant to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (gf)(i)(x) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans)above, and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests any substantially concurrent increase of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only B Commitments pursuant to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (af)(ii)(x) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(aabove), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitments.; provided that:
Appears in 1 contract
Institution of Incremental Term Loans. The Borrower may, at any time, upon ten Business Days prior written notice to the Administrative Agent, institute one or more tranches of additional term loans (each an “Incremental Term Loan”); provided, provided that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan the increase from existing Lenders or other Persons reasonably acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement reasonably acceptable to the Administrative Agent; it being understood that no existing Lender shall be under any obligation to make an Incremental Term Loan and any such decision whether to make an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event the aggregate amount of Default Incremental Term Loans shall exist and be continuing at the time of any such institutionnot exceed $100,000,000;
(D) the Applicable Rate of an applicable Incremental Term Loan Maturity Date for each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided that such date shall not be earlier than the Maturity Date;
(E) the Incremental Term Loan Maturity Date with respect to any scheduled principal amortization payments under each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an documentation governing each Incremental Term Loan shall not be less contain any covenants, defaults or other similar provisions (other than the weighted life provisions relating to maturity of the Term Loaneconomic terms);
(G) each Incremental Term Loan Lender, if not already a Lender hereunder, shall become a party to this Agreement;
(H) Schedule 2.01 shall be deemed revised to reflect the commitments Commitments and commitment percentages Applicable Percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable each Incremental Term Loan Lender Joinder Agreement;
(HI) as a condition precedent to such institution of an each Incremental Term Loan and the effectiveness of the applicable each Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness of any Incremental Term Loan (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (II2) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, date and (y) no Default or Event of Default exists; and;
(IJ) as a Responsible Officer condition precedent to each Incremental Term Loan and the effectiveness of each Incremental Term Loan Agreement, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate certificate demonstrating that, upon giving effect to such Incremental Term Loan on a Pro Forma Effect to such institution of an Incremental Term LoanBasis, the Loan Parties would be in compliance with the financial covenants covenant set forth in Sections 8.11(a) and (b) Section 8.11 as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained ; and
(K) if any new or supplemental regulatory approval by any applicable regulatory body is required in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of connection with such Incremental Term Loan or increase Loan, the Administrative Agent shall have received evidence, in form and substance satisfactory to the Aggregate Revolving Commitments are being used to finance a Permitted AcquisitionAdministrative Agent, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving Commitmentsapproval.
Appears in 1 contract
Samples: Credit Agreement (Energen Corp)
Institution of Incremental Term Loans. The Borrower may, at any time, upon Upon prior written notice to the Administrative Agent, the Company may institute one or more incremental term loan tranches (each an “Incremental Term Loan”) that are Incremental Term A Loans, at any time prior to the Maturity Date with respect to the Term A Loan, or that are Incremental Term B Loans, at any time prior to the Maturity Date with respect to the Term B‑3 Loan, (x) in a maximum aggregate amount (for all Incremental Term Loans instituted after the Third Amendment Effective Date other than those constituting Additional Incremental Term B Loans) of up to the sum of (1) SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) less (2) the amount, if any, of any increase in the Aggregate Revolving A Commitments pursuant to clause (i) above, less (3) the amount, if any, of any increase in the Aggregate Revolving B Commitments pursuant to clause (ii) above; providedand (y) in addition, in an unlimited amount of Incremental Term B Loans that are instituted at any time that the Consolidated Leverage Ratio (in each case, giving effect to the incurrence of such Incremental Term B Loan on a Pro Forma Basis and calculated as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b)) is less than 3.00 to 1.00 (each an “Additional Incremental Term B Loan”) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(y), the identifiable proceeds of such Incremental Term B Loans shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio); provided that:
(A) the Borrower Company (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of each such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan a Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of such institution, or after giving effect to any such institutionIncremental Term Loan;
(D) the Applicable Rate of With respect to any Incremental Term Loan that is an Incremental Term A Loan shall be as set forth in (each of the applicable following is an “Incremental Term A Loan Lender Joinder Agreement;Condition”):
(EI) the Incremental Term Loan Maturity Date with respect to any such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, such date shall not be earlier than the Maturity DateDate with respect to the Term A Loan;
(FII) the scheduled principal amortization payments under an such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, the weighted average life Weighted Average Life to Maturity of an such Incremental Term A Loan shall not be less shorter than the weighted life then‑remaining Weighted Average Life to maturity Maturity of the Term A Loan;
(GIII) all other terms and conditions applicable to such Incremental Term A Loan must be consistent with then‑current market terms for tranche A term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent;
(IV) such Incremental Term A Loan shall share ratably in any prepayments of the Term A Loan and any other Incremental Term A Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Loan and other Incremental Term A Loans) and shall have ratable voting rights with the Term A Loan and the other Incremental Term A Loans (or otherwise provide for more favorable voting rights for the then outstanding Term A Loan and other Incremental Term A Loans).
(E) With respect to any Incremental Term Loan that is an Incremental Term B Loan (each of the following is an “Incremental Term B Loan Condition”):
(I) the Incremental Term Loan Maturity Date with respect to such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, such date shall not be earlier than the Maturity Date with respect to the Term B‑3 Loan;
(II) the scheduled principal amortization payments under such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, the Weighted Average Life to Maturity of such Incremental Term B Loan shall not be shorter than the then‑remaining Weighted Average Life to Maturity of the Term B‑3 Loan;
(III) if the All‑In‑Yield on such Incremental Term B Loan exceeds the All‑In‑Yield on the Term B‑3 Loan or any other Incremental Term B Loan by more than fifty basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term B‑3 Loan and such other Incremental Term B Loans shall on the effective date of such Incremental Term B Loan be increased to the extent necessary to cause the All‑In‑Yield on the Term B‑3 Loan and such other Incremental Term B Loans to be fifty basis points (0.50%) less than the All‑In‑Yield on such Incremental Term B Loan (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company);
(IV) all other terms and conditions applicable to such Incremental Term B Loan must be consistent with then‑current market terms for tranche B term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent; and
(V) such Incremental Term B Loan shall share ratably in any prepayments of the Term B‑3 Loan and any other Incremental Term B Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term B‑3 Loan and other Incremental Term B Loans) and shall have ratable voting rights with the Term B‑3 Loan and the other Incremental Term B Loans (or otherwise provide for more favorable voting rights for the then outstanding Term B‑3 Loan and other Incremental Term B Loans);
(F) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Lender Joinder Agreement;
(G) a Responsible Officer of the Parent shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to the institution of such Incremental Term Loan Lender Joinder Agreementand any Permitted Acquisition consummated in connection therewith, if applicable, in each case on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(G), the identifiable proceeds of such Incremental Term Loan shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio);
(H) as a condition precedent to such institution of an such Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (Ix) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (IIy) in the case of the BorrowerCompany, certifying that, before and after giving effect to such Incremental Term Loan, (xi) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) on and as of the date of such increaseinstitution and effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (yii) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower no existing Lender shall deliver be under any obligation to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of become an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) Lender and (b) as of the most recent fiscal quarter for which the Borrower was required any such decision whether to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such become an Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties Lender shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsLender’s sole discretion.
Appears in 1 contract
Institution of Incremental Term Loans. The Borrower may, Company may at any time after the NinthThirteenth Amendment Effective Date and from time to time, upon prior written notice by the Company to the Administrative Agent, institute an one or more Incremental Term LoanFacilities; provided, that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of any such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan Facility shall be in a minimum aggregate principal amount of $10,000,000 10 million (or, if less, the remaining amount of the Incremental Cap) and in integral multiples of $1,000,000 5 million (or, if less, the remaining amount of the Incremental Cap) in excess thereof;
(CB) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(DC) no existing Lender shall be under any obligation to provide an Incremental Term Loan and any such decision whether to provide an Incremental Term Loan shall be in such Lender’s sole and absolute discretion;
(1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Applicable Rate of an each Incremental Term Loan Facility shall be determined by the applicable Borrower and the Lenders providing Incremental Term Loans under such Incremental Term Facility, as set forth in the applicable Incremental Term Facility Amendment;
(F) the maturity date for any Incremental Term Facility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementFacility Amendment; provided that such date shall not be earlier than the Maturity Date applicable to the Aggregate Revolving Commitments;
(EG) the Incremental Term Loan Maturity Date with respect to scheduled principal amortization payments under any Incremental Term Loan Facility shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementFacility Amendment; provided, that, such date shall not be earlier than the Maturity Date;
(F) the scheduled principal amortization payments under an Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, the weighted average life of an Incremental Term Loan shall not be less than the weighted life to maturity of the Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement;and
(H) as a condition precedent to such institution of an Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreementinstitution, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loaninstitution, and (II2) in the case of the BorrowerCompany, certifying that, before immediately prior to and immediately after giving effect to such Incremental Term Loaninstitution, (x) the representations and warranties of the Company and each other Loan Party contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increaseinstitution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists; and
. The institution of each Incremental Term Facility shall be evidenced by an amendment (Ian “Incremental Term Facility Amendment”) a Responsible Officer of to this Agreement, giving effect to the Borrower shall deliver modifications permitted by this Section 2.02(f)(ii) (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of and each Lender providing an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, Facility; and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase Facility Amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Term Facility Amendment shall also require such amendments to the Aggregate Revolving CommitmentsLoan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.02(f)(ii). Neither any Incremental Term Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing Incremental Term Loans under such Incremental Term Facility and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth above and such other conditions as requested by the Lenders providing Incremental Term Loans under such Incremental Term Facility.
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Samples: Thirteenth Amendment to Fourth Amended and Restated Credit Agreement (Quanta Services, Inc.)
Institution of Incremental Term Loans. The Borrower may, at any time, upon prior written notice to the Administrative Agent, institute an Incremental Term LoanLoans as an additional Class of term loans or as an increase to an existing Class of Term Loans; provided, provided that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such any Incremental Term Loan Loans from existing Lenders or other Persons acceptable one or more new Lenders consented to by the Administrative AgentAgent (such consent not to be unreasonably withheld), which provided (1) new Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement and/or (2) any existing Lender electing to provide an Incremental Term Loan shall have executed an Incremental Term Loan Joinder Agreement or other agreement acceptable Additional Credit Extension Amendment; provided further, that no existing Lender shall be under any obligation to the Administrative Agentprovide Incremental Term Loans and any such decision whether to provide such Incremental Term Loans shall be in such Lender’s sole and absolute discretion;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(D) the Applicable Rate of an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment;
(E) the Incremental Term Loan Maturity Date with respect to any of each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; providedAgreement or other Additional Credit Extension Amendment, that, provided that such date shall not be earlier than the Maturity DateDate applicable to the Term Loan A-2 (except that the Borrower shall be permitted to incur up to $200,000,000 of Incremental Term Loans with an Incremental Term Loan Maturity Date that is earlier than the Maturity Date applicable to the Term Loan A-2, to the extent that the Incremental Term Loan Maturity Date of such Incremental Term Loans is not earlier than the Maturity Date applicable to the Term Loan A-1);
(F) the scheduled principal amortization payments under an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment; provided, that, provided that the weighted average life of an each Incremental Term Loan shall not be less no shorter than the remaining weighted life to maturity of the Term LoanLoan A-2 (except that the Borrower shall be permitted to incur up to $200,000,000 of Incremental Term Loans with a weighted average life to maturity that is shorter than the remaining weighted average life to maturity of the Term Loan A-2, to the extent that the weighted average life to maturity of such Incremental Term Loans is not shorter than the remaining weighted average life to maturity of the Term Loan A-1);
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment;
(H) as a condition precedent to such institution of an each Incremental Term Loan and the effectiveness of the applicable each Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such the Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI V and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 5.04 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.016.01, and (y) no Default or Event of Default exists; and;
(I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary7.14, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to each Incremental Term Loan on a Pro Forma Basis;
(J) the incurrence of Borrower shall pay any applicable fees related to such Incremental Term Loan; and
(K) Incremental Term Loans shall (i) rank pari passu in right of security with the other Facilities, but shall in any case be secured, except during a Collateral Suspension Period, when Incremental Term Loans shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Facilities and (ii) shall be obligations of all Loan or increase to Parties (but not of any Person other than a Loan Party) on the Aggregate Revolving Commitmentssame basis as the Facilities.
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Institution of Incremental Term Loans. The Borrower may, at any time, upon prior written notice to the Administrative Agent, institute an Incremental Term LoanLoans; provided, provided that:
(A) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan the increase from existing Lenders or other Persons acceptable a new Lender consented to by the Administrative AgentAgent (such consent not to be unreasonably withheld), which provided (1) new Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan Lender Joinder Agreement or other agreement acceptable and/or (2) any existing Lender electing to the Administrative Agentprovide an Incremental Term Loan shall have executed an Additional Credit Extension Amendment; provided further, that no existing Lender shall be under any obligation to provide Incremental Term Loans and any such decision whether to provide such Incremental Term Loans shall be in such Lender’s sole and absolute discretion;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of any such institution;
(D) the Applicable Rate of an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment;
(E) the Incremental Term Loan Maturity Date with respect to any of each Incremental Term Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; providedAgreement or other Additional Credit Extension Amendment, that, provided that such date shall not be earlier than the Maturity DateDate applicable to the Initial Term Loan;
(F) the scheduled principal amortization payments under an each Incremental Term Loan shall be as set forth in the applicable related Incremental Term Loan Lender Joinder AgreementAgreement or other related Additional Credit Extension Amendment; provided, that, provided that the weighted average life of an each Incremental Term Loan shall not be less than the weighted life to maturity of the Initial Term Loan;
(G) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment;
(H) as a condition precedent to such institution of an each Incremental Term Loan and the effectiveness of the applicable each Incremental Term Loan Lender Joinder AgreementAgreement or other Additional Credit Extension Amendment, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such the Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Loan, (x) the representations and warranties contained in Article VI V and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 5.04 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.016.01, and (y) no Default or Event of Default exists; and;
(I) a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) and (b) as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary7.14, if the proceeds of such Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to each Incremental Term Loan on a Pro Forma Basis; and
(J) the incurrence of Borrower shall pay any applicable fees related to such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsLoan.
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Institution of Incremental Term Loans. The Borrower may, at any time, upon Upon prior written notice to the Administrative Agent, the Company may institute one or more incremental term loan tranches (each an “Incremental Term Loan”) that are Incremental Term A Loans, at any time prior to the Maturity Date with respect to the Term A Loan, or that are Incremental Term B Loans, at any time prior to the Maturity Date with respect to the Term B-3 Loan, (x) in a maximum aggregate amount (for all Incremental Term Loans instituted after the Sixth Amendment Effective Date other than those constituting Additional Incremental Term Loans) of up to the sum of (1) SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) less (2) the amount, if any, of any increase in the Aggregate Revolving A Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (i) above (other than any Additional Aggregate Revolving A Commitments), less (3) the amount, if any, of any increase in the Aggregate Revolving B Commitments instituted after the Sixth Amendment Effective Date pursuant to clause (ii) above (other than any Additional Aggregate Revolving B Commitments); providedand (y) in addition, in an unlimited amount of Incremental Term Loans that are instituted at any time that the Consolidated Leverage Ratio (in each case, giving effect to the incurrence of such Incremental Term Loan any concurrent institution of Additional Aggregate Revolving A Commitments and CHAR1\1829960v3 Additional Aggregate Revolving B Commitments (and treating such Additional Aggregate Revolving A Commitments and Additional Aggregate Revolving B Commitments as fully drawn for such purpose) on a Pro Forma Basis and calculated as of the most recent fiscal quarter end for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b)) is less than 3.00 to 1.00 (each an “Additional Incremental Term Loan”) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(y), (X) the identifiable proceeds of such Incremental Term Loans shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio and (Y) any institution of Incremental Term Loans under clause (f)(iii)(y) above shall be deemed incurred prior to giving effect to any substantially concurrent institution of Incremental Term Loans pursuant to clause (f)(iii)(x) above, any substantially concurrent increase of the Aggregate Revolving A Commitments pursuant to clause (f)(i)(x) above, and any substantially concurrent increase of the Aggregate Revolving B Commitments pursuant to clause (f)(ii)(x) above); provided that:
(A) the Borrower Company (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of each such Incremental Term Loan from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Loan Lenders by executing an Incremental Term Loan a Lender Joinder Agreement or other agreement acceptable to the Administrative Agent;
(B) any such institution of an Incremental Term Loan shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;
(C) no Default or Event of Default shall exist and be continuing at the time of such institution, or after giving effect to any such institutionIncremental Term Loan;
(D) the Applicable Rate of With respect to any Incremental Term Loan that is an Incremental Term A Loan shall be as set forth in (each of the applicable following is an “Incremental Term A Loan Lender Joinder Agreement;Condition”):
(EI) the Incremental Term Loan Maturity Date with respect to any such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, such date shall not be earlier than the Maturity DateDate with respect to the Term A Loan;
(FII) the scheduled principal amortization payments under an such Incremental Term A Loan shall be as set forth in the applicable Incremental Term Loan Lender Joinder AgreementAgreement applicable thereto; provided, that, the weighted average life Weighted Average Life to Maturity of an such Incremental Term A Loan shall not be less shorter than the weighted life then-remaining Weighted Average Life to maturity Maturity of the Term A Loan;
(GIII) all other terms and conditions applicable to such Incremental Term A Loan must be consistent with then-current market terms for tranche A term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent;
(IV) such Incremental Term A Loan shall share ratably in any prepayments of the Term A Loan and any other Incremental Term A Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Loan and other Incremental Term A Loans) and shall have ratable voting rights with the CHAR1\1829960v3 Term A Loan and the other Incremental Term A Loans (or otherwise provide for more favorable voting rights for the then outstanding Term A Loan and other Incremental Term A Loans).
(E) With respect to any Incremental Term Loan that is an Incremental Term B Loan (each of the following is an “Incremental Term B Loan Condition”):
(I) the Incremental Term Loan Maturity Date with respect to such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, such date shall not be earlier than the Maturity Date with respect to the Term B-3 Loan;
(II) the scheduled principal amortization payments under such Incremental Term B Loan shall be as set forth in the Lender Joinder Agreement applicable thereto; provided, that, the Weighted Average Life to Maturity of such Incremental Term B Loan shall not be shorter than the then-remaining Weighted Average Life to Maturity of the Term B-3 Loan;
(III) if the All-In-Yield on such Incremental Term B Loan exceeds the All-In-Yield on the Term B-3 Loan, the Term B-4 Loan or any other Incremental Term B Loan by more than fifty basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Company with respect to the Term B-3 Loan, the Term B-4 Loan and such other Incremental Term B Loans shall on the effective date of such Incremental Term B Loan be increased to the extent necessary to cause the All-In-Yield on the Term B-3 Loan, the Term B-4 Loan and such other Incremental Term B Loans to be fifty basis points (0.50%) less than the All-In-Yield on such Incremental Term B Loan (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Company);
(IV) all other terms and conditions applicable to such Incremental Term B Loan must be consistent with then-current market terms for tranche B term loans in the syndicated loan markets, as determined by the Administrative Agent in its discretion, and otherwise reasonably acceptable to the Administrative Agent; and
(V) such Incremental Term B Loan shall share ratably in any prepayments of the Term B-3 Loan, the Term B-4 Loan and any other Incremental Term B Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term B-3 Loan, the Term B-4 Loan and other Incremental Term B Loans) and shall have ratable voting rights with the Term B-3 Loan, the Term B-4 Loan and the other Incremental Term B Loans (or otherwise provide for more favorable voting rights for the then outstanding Term B-3 Loan, the Term B-4 Loan and other Incremental Term B Loans);
(F) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the applicable Incremental Term Loan Lenders with respect to an Incremental Term Loan as set forth in the applicable Lender Joinder Agreement;
(G) a Responsible Officer of the Parent shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to the institution of such Incremental Term Loan Lender Joinder Agreementand any Permitted Acquisition consummated in connection therewith, if applicable, in CHAR1\1829960v3 each case on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b) (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this clause (f)(iii)(G), the identifiable proceeds of such Incremental Term Loan shall not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio);
(H) as a condition precedent to such institution of an such Incremental Term Loan and the effectiveness of the applicable Incremental Term Loan Lender Joinder Agreement, the Borrower Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (Ix) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan, and (IIy) in the case of the BorrowerCompany, certifying that, before and after giving effect to such Incremental Term Loan, (xi) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) on and as of the date of such increaseinstitution and effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effectmateriality) as of such earlier date, and except that for purposes of this Section 2.02(f)(ii2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (yii) no Default or Event of Default exists; and
(I) a Responsible Officer of the Borrower no existing Lender shall deliver be under any obligation to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such institution of become an Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Sections 8.11(a) Lender and (b) as of the most recent fiscal quarter for which the Borrower was required any such decision whether to deliver financial statements pursuant to Section 7.01(a) or (b). Notwithstanding anything to the contrary contained in this Section 2.02(f) or the definition of “Permitted Acquisitions” to the contrary, if the proceeds of such become an Incremental Term Loan or increase to the Aggregate Revolving Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 5.02(a), this Section 2.02(f) and clause (g) of the proviso in the definition of “Permitted Acquisitions” to the accuracy of the representations and warranties Lender shall refer to the accuracy of (1) the Specified Representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Revolving Loans), and (2) those representations made by the acquired company with respect to such acquired company and its subsidiaries and assets in the main transaction agreement governing such Permitted Acquisition that are material to the interests of the lenders under such Incremental Term Loan or the Aggregate Revolving Commitments, but only to the extent that the Borrower (or its Subsidiary or Affiliate) has the right to terminate its (or its Subsidiary’s or Affiliate’s) obligations under such transaction agreement, or decline to consummate the proposed Permitted Acquisition, as a result of a breach of such representations in such transaction agreement, and (y) the reference in Section 5.02(b), this Section 2.02(f) and clause (a) of the proviso in the definition of “Permitted Acquisitions”, in each case, to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition is executed and delivered and the absence of an Event of Default under Sections 9.01(a), (f) or (g) immediately prior to and after giving effect to the incurrence of such Incremental Term Loan or increase to the Aggregate Revolving CommitmentsLender’s sole discretion.
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