Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates. (a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) The Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly notify the Lenders), at any time after the Closing Date, the Borrower may from time to time amend this Agreement request (i) additional Commitments under the Term Facility (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Term Commitments”) or (ii) increases in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect aggregate amount of the Revolving Facility or any other existing revolving facility hereunder Commitments (eacheach such increase, an “Incremental Revolving FacilityCommitment” and loans pursuant thereto and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that (x) both before and after giving effect to any such addition, the aggregate amount of Incremental Commitments that have been added pursuant to this shall not exceed $50,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and (z) there shall be not more than three (3) such increases.
(b) Any Loans made in respect of any Incremental Revolving Loans”Commitments shall be made by increasing the Total Revolving Commitment with the same terms (including pricing) and additional term loan facilities hereunder as the existing Revolving Loans (each, an a “Revolving Commitment Increase”). Any Loans made in respect of any Incremental Term Facility” and loans pursuant thereto Commitments (the “Incremental Term Loans”; together with any Incremental Revolving Facility) may be made, at the “Incremental Facilities”)option of the Borrower, provided that by either (i) increasing the aggregate principal amount of Total Term Commitment with the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio same terms (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)including pricing) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) existing Term Loans, or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in creating a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any new tranche of terms loans (an “Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Loan Tranche”). Any Revolving Commitment Increases or Incremental Term Facility agree, the foregoing clause Loans (ivA) shall be tested solely at not have a final maturity earlier than the time of the execution of the acquisition agreement Revolving Facility Final Maturity Date or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have Final Maturity Date or a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans, as the case may be, (provided that any Incremental Term Facility may amortize B) shall rank pari passu in an amount such that it is fungible right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loan FacilityLoans and (C) shall have such other terms and a final maturity no earlier than provisions, to the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on extent not consistent with the same basis Revolving Loans or the Term Loans, as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms case may be, as are reasonably satisfactory to the Administrative Agent, Joint Lead Arrangers.
(c) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and the Lenders providing such Incremental Facility. The proposed terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Commitments. Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and Loans (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any portion thereof) may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender institution or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower investing entity (any such bank, financial institution, existing Lender institution or other Person being called investing entity, an “Additional Incremental Lender”) ), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent (and, if not already in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender, ) shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender's or delayed) of Incremental Lender's, as the Administrative Agentcase may be, the Issuing Lender (to the extent making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required with respect to under Section 12.4 for an assignment of Loans or Revolving Commitments, as applicable, to such Additional Lender pursuant or Incremental Lender, as the case may be. No Lender shall be obligated to Section 10.6provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender's Revolving Commitment) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (including in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to provide for voting provisions applicable respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Additional Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The effectiveness Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Facility Amendment shallCommitments are added in accordance with this Section 2.14, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to Borrower shall determine the satisfaction on effective date (the date thereof (each, an “Incremental Facility Closing Commitments Effective Date”) and the final allocation of such addition; provided, that at any existing Lender electing to participate in the time proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereofsuch increase, each of (A) the representations and warranties made by any Loan Party contained in or pursuant to Section 7 and the Loan other Credit Documents shall be are true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such datethe Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be have been true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the event that any tranche case of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of Commitment, shall make an Incremental Term Facility agreeLoan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be different).
(e) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Revolving Commitment Increase (each an “Incremental Revolving Lender”), and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's risk participation hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of such risk participations, the foregoing percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be limited accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition any transaction that are material may be effected pursuant to the interests of the Lenders and only immediately preceding sentence.
(f) This Section 2.14 shall supersede any provisions in Section 12.12 to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)contrary.
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.0050,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming assuming, if such Incremental Facility is an Incremental Revolving Facility, such Incremental Revolving Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) financial covenant and (iv) at the time and after giving effect to the incurrence of any Incremental FacilityFacility and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and Borrower, (ii) no Incremental Revolving Facility shall have any amortizationamortization and (iii) if, for any Incremental Facility, the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to such Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term Facility or the Revolving Facility, as applicable, and any Eurodollar or ABR floor applicable to the Term Facility or the Revolving Facility, as applicable) relating to the Term Facility or the Revolving Facility, as applicable, immediately prior to the effectiveness of such Incremental Facility by more than 0.25%, the Applicable Margin (as calculated above) relating to the Term Facility or the Revolving Facility, as applicable, shall be adjusted to be equal to the Applicable Margin (as calculated above) relating to such Incremental Facility minus 0.25% (it being understood that differences in any Eurodollar or ABR floor, if required to be adjusted pursuant to the foregoing, shall be added to the Eurodollar or ABR floor to the extent required and not to the Applicable Margin). In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(ab) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender and/or the Swingline Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party conditions set forth in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representationsSection 5.2. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each 150,000,000. Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility shall not mature earlier than the Maturity Date nor have amortization of $25,000,000greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Borrower pursuant to this Section 2.23 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and); provided that the Administrative Agent, if not already a the Swingline Lender, and the Issuing Bank shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, the Issuing Lender (to the extent such Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.4 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.2(b) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.23. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that at all references to the time date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to the incurrence of any Incremental Facility Revolving Facility, each Lender’s and the use each Additional Lender’s, if any, Pro Rata Share of proceeds thereof, each of the representations Revolving Commitments and warranties made by any Loan Party the Revolving Loans shall equal such Lender’s and such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments after giving effect to such Incremental Revolving Facility; provided further, that in or pursuant to furtherance of the Loan Documents foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be true deemed to have irrevocably sold, transferred, conveyed and correct in all material respects assigned to each other Lender and each other Additional Lender, if any (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingwithout, for the avoidance of doubt, Permitted Acquisitions increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and other Investments Revolving Loans such that, after giving effect to such assignment, each Lender and Restricted Payments)each Additional Lender, if any, shall hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time from time to time amend during the Commitment Period and after the First Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect form of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and term loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Term LoansRevolver”; together with any each Incremental Revolving FacilityTerm Loan and Incremental Revolver, the an “Incremental FacilitiesFacility”), provided that ) by an aggregate amount of up to $125,000,000. The following terms and conditions shall apply to each Incremental Facility: (ia) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming loans made under any such Incremental Facility is fully drawn as of (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) any such date Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms (including interest rate, maturity date, voting rights and (z) disregarding rights to receive the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, prepayments) as the use of such proceeds existing Revolving Loans and shall be given pro forma effect in such calculation)considered Revolving Loans hereunder and (2) as made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of the last day of the most recently ended fiscal quarter for which financial statements have been delivered prepayments and amortization) to be agreed upon by the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00Borrower at the time of such Incremental Term Loan, (iic) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,00025,000,000 and integral multiples of $2,500,000 in excess thereof, (iiid) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (f) before any Additional Loans are made, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (g) no Default or Event of Default shall then exist or would exist after giving effect to any such Incremental Facility, (h) the Administrative Agent shall have received from the Borrower a satisfactory legal opinion of counsel to the Borrower and such other documentation as it deems reasonably necessary to effectuate each such Incremental Facility and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to the Administrative Agent, demonstrating that, (A) after giving effect to any such Incremental Facility on a pro forma basis, the Credit Parties will be in pro forma compliance with the financial covenants set forth in Section 7.1 5.9 and (B) if the full amount of the Revolving Committed Amount (after giving effect to the incurrence of such Incremental Facility) were drawn by the Borrower, such the Credit Parties would be in compliance to with all financial covenants under the Subordinated Note Documents and the documents for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). Each Incremental Facility shall be determined (x) on the basis of the obtained from existing Lenders or from other banks, financial information most recently delivered institutions or investment funds reasonably acceptable to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility AmendmentBorrower; provided that (i) such other than amortization (with respect banks, financial institutions and investment funds shall enter into such joinder or other agreements to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms give effect thereto as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility amendment to this Credit Agreement or any other existing revolving credit facility hereunder, Credit Document as may be necessary to incorporate the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect terms of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)therein.
Appears in 1 contract
Sources: Credit Agreement (Belden CDT Inc.)
Incremental Facility. (a) The Borrower may from time Subject to time amend all the terms of this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”)Agreement, provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, no Default exists and is then continuing and (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after (giving effect to the incurrence of such the Funded Debt resulting from the Borrowing of the Incremental Facility Loans) with Section 7.18, the Borrower may incur additional Debt hereunder in the form of term loans (the “Incremental Facility, such compliance ”) in an aggregate principal amount that does not exceed $50,000,000. The Borrower may request up to be determined (x) on three Borrowings under the basis Incremental Facility prior to the termination of the financial information most recently delivered Incremental Facility in an aggregate minimum principal amount of $10,000,000. The Incremental Facility shall, among other things, (a) share in the Collateral to the same extent as the other Loans, (b) be entitled to prepayments pursuant to Section 3.03 to the same extent as the other Term Loans, (c) not be secured by any collateral other than the Collateral that secures the Loans or guaranteed by any Person other than pursuant to the Credit Documents with respect to the Loans, and (d) be documented on other terms and conditions that are reasonably satisfactory to the Administrative Agent Agent. The interest rate, commitment fee rate, amortization schedule and maturity date for the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at as agreed upon between any Lenders agreeing to provide the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof the Borrower; provided that (i) the final maturity date of the Incremental Facility shall not be earlier than the Tranche B Term Loan Maturity Date or later than May 1, 2011 if any Discount Notes are outstanding on such date, (ii) the interest earned on the Incremental Facility Loans shall be Obligations under this Agreement less than or equal to the interest earned on the Tranche B Term Loans and (iii) the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must Loans shall have a weighted average life to maturity which is the same or longer greater than the then remaining weighted average life to maturity of the Tranche B Term Loans. The lenders and the loans under the Incremental Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments “Lenders” and voting rights on “Term Loans” for all purposes of this Agreement and the same basis other Credit Documents, and shall be treated as the comparable Facility unless the applicable such, in terms of sharing of payments and other appropriate provisions. The Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall will be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement documented pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower, each Additional Lender Person providing a commitment to the Incremental Facility and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment Such amendment may, without the consent of any other Lenders, effect such amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.07. The effectiveness of any Incremental Facility Amendment shallmay be established at any time at the request of the Borrower, unless otherwise agreed upon notice to by the Administrative Agent and the Additional Lenders, be and subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that agreement of Persons who, in their sole discretion, choose to participate in the Incremental Facility. No Lender shall have any obligation to participate in the Incremental Facility unless and until it commits to do so. The Administrative Agent and the Borrower or shall provide all then existing Lenders with an opportunity to commit to the Incremental Facility on a ratable basis (the period in which any Lender shall be required to make a decision on its applicable Subsidiary has participation in the right to terminate its obligations (or decline to consummate Incremental Facility being in any event no less than ten Business Days from the acquisition) under such agreement as a result date of delivery by the Borrower of a breach of notice inviting such representations. The proceeds of any Incremental Facility will participation), and if sufficient commitments cannot be used only obtained in such manner, shall provide other lenders with such opportunity (and for general corporate purposes (includingexisting Lenders with the ability to commit for more than their ratable portion), for and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the avoidance of doubt, Permitted Acquisitions Administrative Agent and other Investments and Restricted Payments)the Borrower.
Appears in 1 contract
Incremental Facility. (a) The So long as no Default or Event of Default has occurred and is continuing, at any time prior to March 31, 2005, the Borrower may from time to time amend this Agreement in order to provide request pursuant to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants procedure set forth in Section 7.1 after giving effect to 2.15(c), the incurrence addition of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such an Incremental Facility is fully drawn consisting of two types of new loans referred to herein as of such date "Incremental Revolving Credit Loans" and "Incremental Seasonal Revolving Credit Loans" (z) disregarding collectively, "Incremental Loans"); provided however that the proceeds of such Borrower may not make a request for an Incremental Facility in calculating such leverage ratio an amount other than $10,000,000. The Incremental Revolving Credit Loans shall: (it being understood that, if applicable, i) upon the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time effectiveness of the execution of the acquisition agreement or other similar document having similar effect related Incremental Commitment relating thereto as provided in Section 2.15(b), be deemed to such Limited Conditionality Acquisition. The be Revolving Credit Loans and Commitments in respect of any Incremental Facility and for all obligations in respect thereof shall be Obligations purposes under this Agreement and the other Loan Documents that are secured by Credit Documents; (ii) have the Collateral same interest rates and guaranteed on a pari passu basis with related margins and commitment fees as all other applicable Obligations Revolving Credit Loans; and (iii) otherwise have all of the same terms and conditions (other than the amount of the upfront fee) as each Revolving Credit Loan that is not an Incremental Revolving Credit Loan. In addition, all references in the Credit Documents to Revolving Credit Loans shall be deemed, as the context requires, to include references to Incremental Revolving Credit Loans made pursuant to this Agreement. The Incremental Seasonal Revolving Credit Loans shall: (i) upon the effectiveness of the Incremental Commitment relating thereto as provided in Section 2.15(b), be deemed to be Seasonal Revolving Credit Loans for all purposes under this Agreement and the other Loan Credit Documents. Each Incremental Term Facility must ; (ii) have a weighted average life to maturity which is the same or longer interest rates and related margins and commitment fees as all other Seasonal Revolving Credit Loans; and (iii) otherwise have all of the same terms and conditions (other than the then remaining weighted average life to maturity amount of the Term Facility (provided upfront fee) as each Seasonal Revolving Credit Loan that is not an Incremental Seasonal Revolving Credit Loan. In addition, all references in the Credit Documents to Seasonal Revolving Credit Loans shall be deemed, as the context requires, to include references to Incremental Seasonal Revolving Credit Loans made pursuant to this Agreement. No Lender shall have any obligation to make an Incremental Term Facility may amortize in an amount such that Loan unless and until it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Datecommits to do so. Incremental Facilities will be entitled Commitments in respect of Incremental Loans shall become part of the Total Commitments under this Agreement pursuant to prepayments and voting rights on (x) an amendment (an "Incremental Loan Amendment") to this Agreement executed by the same basis as Borrower, each Lender or other financial institution that is approved by the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable Administrative Agent which agrees to all Lenders providing provide such Incremental Facility Commitment (and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility no other Lender shall be on required to execute such terms as are reasonably satisfactory to amendment), and the Administrative Agent, and (y) any amendments to the Borrower other Credit Documents (executed by the Borrower, its relevant Subsidiaries, and the Lenders providing Administrative Agent only) as the Administrative Agent shall reasonably deem appropriate to effect such purpose. Notwithstanding anything to the contrary contained herein, the effectiveness of such Incremental Facility. The terms Loan Amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Loans are made, of each of the applicable Incremental Facility shall be as conditions set forth in the applicable Incremental Facility Amendment; provided that Section 4.01.
(b) So long as (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility the Borrower shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to given the Administrative Agent and no less than five Business Days' prior notice of the Borrower effectiveness thereof and (ii) no any financial institution not theretofore a Lender which is providing the Incremental Revolving Facility Commitment shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment Incremental Loan Amendment, the Incremental Commitment being requested by the Borrower shall become effective under this Agreement upon the effectiveness of such Incremental Loan Amendment. Upon such effectiveness, (an “i) Part I of Schedule 2.01(a) shall be deemed amended and restated in its entirety as set forth on Part II of Schedule 2.01(a) and (ii) Part I of Schedule 2.01(b) shall be deemed amended and restated in its entirety as set forth on Part II of Schedule 2.01(b). In the event that the Incremental Facility Amendment”) to this Agreement and, as appropriateshall have become effective, the Person providing the Incremental Commitment shall be deemed to have agreed, upon the terms and subject to the conditions of this Agreement, with respect to the Incremental Commitment, to make from time to time during the period from the date of the effectiveness of the applicable Incremental Loan Amendment through the Final Maturity Date, one or more Loans to the Borrower pursuant to the provisions of Section 2.03 in an aggregate principal amount not exceeding at any time such Person's aggregate portion of the Total Commitment at such time.
(c) When the Borrower wishes to request a Lender or other Loan Documentsfinancial institution to provide proposals for the providing of the Incremental Facility, executed the Borrower may solicit requests from any Lender or other financial institution for the providing of a commitment for Incremental Loans (the "Incremental Commitment"). Upon the selection by the BorrowerBorrower of a Lender or such other financial institution, each Additional the Borrower shall promptly notify the Administrative Agent of the Lender and or such other financial institution selected for approval by the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence shall promptly thereafter notify Borrower of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in its approval or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as rejection of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement Lender or other document having similar effect related financial institution, which approval shall not to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)unreasonably withheld.
Appears in 1 contract
Incremental Facility. (a) The Borrower may may, from time to time amend this Agreement in order to provide to request that the Borrower additional revolving loan facilities and/or increased revolving commitments in respect aggregate amount of the Revolving Facility or Commitments be increased by having an existing Lender agree in its sole discretion to increase its then existing Commitment (an “Increase Lender”) and/or by adding as a new Lender hereunder any other existing revolving facility hereunder Person (eacheach such Person, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving LoansAssuming Lender”) approved by the Administrative Agent and additional term loan facilities each Issuing Bank (in each case, such approval not to be unreasonably withheld or delayed) that shall agree to provide a Commitment hereunder (each, an each such proposed increase pursuant to the foregoing clauses (x) and (y) being a “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesCommitment Increase”), provided that in each case, by notice to the Administrative Agent specifying the amount of the relevant Commitment Increase, the Increase Lender(s) and/or Assuming Lender(s) providing such Commitment Increase and the date on which such Commitment Increase is to be effective (the “Increase Date”), which shall be a Business Day at least three Business Days after delivery of such notice; provided, however, that:
(i) the aggregate principal minimum amount of each Commitment Increase shall be $10,000,000 or a larger multiple of $5,000,000;
(ii) the aggregate amount of all Commitment Increases hereunder, together with the aggregate amount of all Incremental Facilities Equivalent Debt incurred under Section 2.18(d), shall not exceed $200,000,000exceed, plus additional amounts at the time of incurrence thereof, the sum of (the amount available under clauses (A) through (C) below, the “Available Incremental Amount”):
(A) an amount equal to the extent the Consolidated First Lien Net Leverage Ratio (determined greater of (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, $413,000,000 and (y) assuming such Incremental Facility is fully drawn as 100% of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of Consolidated Adjusted EBITDA for the most recently ended fiscal quarter Measurement Period for which financial statements have been delivered to delivered, plus
(B) the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000any permanent optional reductions of Commitments, plus
(iiiC) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 an unlimited amount such that, after giving effect to the incurrence of such Incremental Facilityamount (which shall be deemed to include the full amount of any Commitment Increase being implemented at such time assuming that the full amount of such Commitment Increase had been drawn), such compliance the Total Net Leverage Ratio would not exceed 2.5 to be determined (x) on 1.0 for the basis of the financial information most recently ended Measurement Period for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a5.01(a) or (b) as though and calculated on a Pro Forma Basis (but calculating the Total Net Leverage Ratio without netting the cash proceeds from such Loans, and without giving effect to any substantially simultaneous incurrence had been consummated as of Indebtedness made pursuant to clause (x) of this Section 2.18(a)(ii)); provided, that the Borrower may elect to use clause (z) of the first day of the fiscal period covered thereby, Available Incremental Amount prior to using clauses (x) or (y) assuming such of the Available Incremental Facility is fully drawn as of such date Amount, and if both clause (z) disregarding and clauses (x) or (y) of the proceeds Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (z) of such the Available Incremental Facility in calculating such leverage ratio Amount first;
(it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculationiii) and (iv) both at the time and after giving effect to the incurrence of any Incremental Facilitysuch request and upon the effectiveness of any Commitment Increase, no Default or Event of Default shall have occurred and be continuing; continuing or would result from such proposed Commitment Increase (provided that, in with respect to any Commitment Increase the event that any tranche primary purpose of an Incremental Term Facility which is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeCondition Transaction, the foregoing clause (ivrequirement pursuant to this Section 2.18(a)(iii) shall be tested that no Event of Default under clauses (a) or (b) of Article 7 or, solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in with respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative AgentBorrower, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that clauses (h) or (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a LenderArticle 7, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and exist after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of such Commitment Increase);
(iv) the representations and warranties made by any Loan Party set forth in or pursuant to Article 3 and in the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materialitywithout duplication of any materiality qualifier contained therein) on immediately prior to, and as of after giving effect to, such date Commitment Increase as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, except as of such specific date (provided that, with respect to any Commitment Increase the extent that primary purpose of which is to finance a Limited Condition Transaction, the only representations and warranties, the breach or inaccuracy of which shall be a condition to funding, shall be customary “Sungard” representations and warranties (with such representations and warranties specifically refer to be reasonably determined by the Lenders providing such Commitment Increase); and
(v) any Commitment Increase shall be on terms that are identical to the existing Commitments. Each notice by the Borrower under this paragraph shall be deemed to constitute a representation and warranty by the Borrower as to the matters specified in clause (iv) above. Notwithstanding anything herein to the contrary, no Lender shall have any obligation hereunder to become an earlier dateIncrease Lender and any election to do so shall be in the sole discretion of each Lender.
(b) Each Commitment Increase (and the increase of the Commitment of each Increase Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become effective as of the relevant Increase Date upon receipt by the Administrative Agent, on or prior to 12:00 noon, New York City time, on such Increase Date, of (i) a certificate of a Financial Officer stating that the conditions with respect to such Commitment Increase under this Section 2.18 have been satisfied, (ii) an agreement (a “Commitment Increase Supplement”), in which case they shall be true form and correct in all material respects (or in all respects if qualified by materiality) on substance reasonably satisfactory to the Borrower, each Increase Lender, each Assuming Lender and the Administrative Agent, pursuant to which, effective as of such earlier date; provided thatIncrease Date, as applicable, the Commitment of each such Increase Lender shall be increased or each such Assuming Lender shall undertake a Commitment, in each case duly executed by such Increase Lender or Assuming Lender, as the event that case may be, and the Borrower and acknowledged by the Administrative Agent and (iii) such certificates, legal opinions or other documents from the Borrower reasonably requested by the Administrative Agent in connection with such Commitment Increase. Upon the Administrative Agent’s receipt of a fully executed Commitment Increase Supplement from each Increase Lender and/or Assuming Lender referred to in clause (ii) above, together with the certificates, legal opinions and other documents referred to in clauses (i) and (iii) above, the Administrative Agent shall record the information contained in each such agreement in the Register and give prompt notice of the relevant Commitment Increase to the Borrower and the Lenders (including, if applicable, each Assuming Lender). At the election of the Administrative Agent in its sole discretion, any tranche of an Incremental Term Facility is used Loans outstanding on such Increase Date shall be reallocated among the Lenders (with Lenders making any required payments to finance a Limited Conditionality Acquisition and each other) to the extent necessary to keep the Additional outstanding Loans ratable with any revised pro rata shares of such Lenders participating arising from any nonratable increase in the Commitments under this Section 2.18. Upon each such tranche of an Incremental Term Facility agreeCommitment Increase, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the participation interests of the Lenders in the then outstanding Letters of Credit shall automatically be adjusted to reflect, and only each Lender (including, if applicable, each Assuming Lender) shall have a participation in each such Letter of Credit equal to, the Lenders’ respective Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit after giving effect to such increase.
(c) This Section shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
(d) The Borrower may utilize the Available Incremental Amount in respect of one or more series of senior unsecured notes or term loans, issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, in an aggregate amount not to exceed, together with the aggregate amount of all Commitment Increases, the Available Incremental Amount (“Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not have a final maturity date earlier than the latest then applicable Maturity Date (as determined as of the date of incurrence of such Incremental Equivalent Debt) and provides for payments of principal no earlier than such Maturity Date or does not provide for payments of principal in excess of 1.0% per annum, (ii) contains terms customary for similar issuances of Indebtedness at such time (as determined in good faith by the Borrower) (it being understood that, other than in the case of any issuance of a debt security, such terms shall be no more restrictive, taken as a whole (as determined in good faith by the Borrower) than this Agreement and in any event no such Indebtedness (including any debt securities) shall contain any more restrictive financial maintenance covenant), and (iii) to the extent that guaranteed, shall not be guaranteed by any Person other than the Loan Parties. To the extent the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, provides first lien security for the avoidance benefit of doubtall Lenders, Permitted Acquisitions the Borrower may utilize the Available Incremental Amount in respect of one or more series of senior secured first lien notes (secured on a pari passu basis with the Obligations) or senior secured junior lien term loans (secured on a junior lien basis to the Obligations), issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, so long as the conditions set forth in the previous sentence are satisfied and other Investments (i) such notes or term loans are not secured by any asset that does not also secure the Obligations hereunder on a pari passu basis with liens securing such notes or term loans, and Restricted Payments)(ii) such notes or term loans shall be subject to customary intercreditor arrangements reasonably satisfactory to the Borrower and the Administrative Agent.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time after completion of the syndication of the Commitments (as determined by WCM) until the date that is the second anniversary of the Closing Date, on a one-time basis, to incur additional Indebtedness under this Agreement in the form of an addition to the Term Loan (the “Incremental Facility”) by an aggregate amount of up to $25,000,000. The following terms and conditions shall apply to the Incremental Facility: (a) The Borrower may from the loans made under the Incremental Facility shall constitute Obligations and Credit Party Obligations and will be secured and guaranteed with the other Loans on a pari passu basis, (b) the weighted average life and final maturity applicable to such Incremental Facility shall be determined at the time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving such Incremental Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”is made available; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) such Incremental Facility shall mature no earlier than the aggregate principal amount Term Loan Maturity Date and (ii) the weighted average life to maturity of the Incremental Facilities Facility shall not exceed $200,000,000, plus additional amounts be longer than or substantially similar to the extent weighted average life to maturity of the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental FacilityTerm Loan, (yc) assuming the interest rate margin applicable to such Incremental Facility is fully drawn shall be the same as the Applicable Percentage for the Term Loan, (d) such Incremental Facility shall be entitled to the same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loans, (e) such date and Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (zf) disregarding the proceeds of such Incremental Facility will be used for purposes consistent with Section 3.11 hereof, (g) the conditions to Extensions of Credit in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds Section 4.2 shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to satisfied, (h) the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) have received from the Borrower updated financial projections and an Officers’ Certificate, in each case in form and substance satisfactory to Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility, no Default or Event of Default shall have occurred and be continuing and that the Borrower will be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined 5.9 and (xi) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) shall have received such other documentation as though such incurrence had been consummated as it may reasonably request, including without limitation, an opinion of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect counsel to the incurrence of any Incremental FacilityBorrower and organizational documents and resolutions from the Credit Parties, no Event of Default shall have occurred all in form and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably substance satisfactory to the Administrative Agent. Participation in the Incremental Facility hereunder shall be offered first to each of the existing Lenders, the Borrower and the Lenders providing but each such Lender shall have no obligation to provide all or any portion of such Incremental Facility. The terms If, upon the date that is fifteen Business Days after the existing Lenders are invited by the Administrative Agent to participate in such Incremental Facility, the amount of the applicable Incremental Facility shall be as set forth in exceed the applicable Incremental Facility Amendment; provided commitments that (i) other than amortization (the existing Lenders are willing to provide with respect to any the Incremental Term Facility), pricing or maturity datethen the Borrower may invite other banks, each financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall have the same terms enter into such joinder agreements to give effect thereto as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility amendment to this Agreement or any other existing revolving credit facility hereunder, Credit Document as may be necessary to incorporate the manner in which such increase is implemented shall be reasonably satisfactory to terms of the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An new Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional banktherein, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (solely to the extent such consent would be required terms are consistent with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, the terms as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments set forth in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)2.5.
Appears in 1 contract
Sources: Credit Agreement (Amedisys Inc)
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide time, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each, an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “”; together with the Incremental Revolving Loans”) and additional term loan facilities hereunder (Term Facilities, each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the applicable covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio Available Incremental Amount (as determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day date of incurrence of any applicable Incremental Facility or, for any Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, as of the most recently ended fiscal quarter date on which the definitive acquisition agreement for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) such Limited Condition Acquisition is less than 2.50:1.00, (ii) each entered into). Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility shall not mature earlier than the Maturity Date nor have amortization of $25,000,000greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facilitypricing, amortization and maturity), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented documentation shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of Each notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to from the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).this
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period, the Borrower may request from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility from one or any more existing Lenders or from other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are Eligible Assignees reasonably satisfactory acceptable to the Administrative Agent, the Borrower Issuing Lender, the Swingline Lender and the Lenders providing such Incremental Facility. The terms of Borrower (but subject to the applicable Incremental Facility shall be as conditions set forth in clause (b) below) the applicable Incremental Facility AmendmentTotal Commitments be increased by an amount not to exceed the Available Revolving Increase Amount at such time (each such increase, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions (iexcluding any request for an Increase that is not effectuated) other than amortization (during the term of this Agreement. No Lender shall be obligated to increase its Commitments in connection with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have a proposed Increase. To the same terms as the Term Facility or the Revolving Facilityextent sufficient existing Lenders, as applicable, or such do not agree to increase their Commitments on terms as are reasonably satisfactory acceptable to the Administrative Agent and Borrower, or to the extent such Lenders have not promptly responded to the Borrower’s request for such increase, the Borrower and may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender pursuant to a joinder agreement in connection with the proposed Increase (ii) no Incremental Revolving Facility shall have any amortization. In provided that the case joinder of any Incremental Revolving Facility that increases such “Lender” for the commitments under the Revolving Facility purpose of providing all or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect portion of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility such Increase shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to require the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender and the Swingline Lender (but not any other Lender). Any Increase shall be in an amount of at least $10,000,000 (or, if the Available Revolving Increase Amount is less than $10,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the extent such consent would Commitments exceed the Available Revolving Increase Amount during the term of the Agreement.
(b) Each of the following shall be required with respect conditions precedent to an assignment to such Additional Lender any Increase of the Commitments in connection therewith:
(i) any Increase shall be on the same terms (including the pricing, and maturity date), as applicable, as, and pursuant to Section 10.6) and documentation applicable to, the Facility then in effect;
(ii) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Increase at least ten (10) Business Days prior to the requested funding date of such Increase;
(iii) [reserved];
(iv) each Lender (including any prospective lenders agreeing to become a Lender under this Agreement pursuant hereunder) agreeing to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriatesuch Increase, the other Loan Documents, executed by the Borrower, each Additional Lender Borrower and the Administrative Agent. No Incremental Facility Amendment shall require Agent have signed an Increase Joinder (any Increase Joinder may, with the consent of any the Administrative Agent, the Borrower and the Lenders other than the Additional Lenders with respect agreeing to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other LendersIncrease, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Increase;
(v) each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied with respect to such Increase;
(vi) after giving pro forma effect to such Increase and the use of proceeds thereof and assuming that the Total Commitments are fully drawn, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase and (B) the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to such Increase (provided that the Consolidated Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(c) for such period), and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (vi) and clause (v) above;
(vii) in connection with such Increase, the Borrower shall pay to Administrative Agent all fees required to be paid pursuant to the terms of the Fee Letter; and
(viii) upon each Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages, pursuant to provide for voting provisions applicable to procedures reasonably determined by the Additional Lenders). The Administrative Agent.
(c) Upon the effectiveness of any Incremental Facility Amendment Increase, (i) all references in this Agreement and any other Loan Document to the Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.27 and (ii) all references in this Agreement and any other Loan Document to the Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.27.
(d) The Loans and Commitments established pursuant to this Section 2.27 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, unless otherwise agreed to without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Additional Lenders, Liens and security interests granted by the Loan Documents continue to be subject to perfected under the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and UCC or otherwise after giving effect to the incurrence establishment of any Incremental Facility such new Commitments, which actions may include re-granting Liens and the use of proceeds thereofentering into supplements, each amendments, restatements or replacements of the representations Security Documents and warranties made executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Administrative Agent.
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis, treating all Deferred Consideration required to be paid other than in common equity interests then outstanding as Consolidated Total Debt solely for testing pro forma compliance with the covenants contained in Article VI, as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under the Facility and such Incremental Facility had been outstanding (without netting the cash proceeds thereof) and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the conditions in clause (i) and (ii) shall be subject to Section 1.7 and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) the Fixed Incremental Amount minus any amounts incurred prior to such time under the Fixed Incremental Amount pursuant to Section 7.1(k) or Section 7.1(r) plus (y) an additional amount so long as, after giving pro forma effect to the incurrence of such Indebtedness, the First Lien Leverage Ratio does not exceed 4.00:1.00 calculated on a pro forma basis after giving effect to for the provision period of such Incremental Facilityfour consecutive fiscal quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (y) assuming such Incremental Facility is assuming, in the case of each revolving facility, that the commitments are fully drawn as and without netting the proceeds of any such date and (z) disregarding Indebtedness to be incurred at the time of testing such pro forma compliance); provided, that, if the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood thatwill be applied to finance a Limited Condition Acquisition, if applicable, compliance with the use of such proceeds First Lien Leverage Ratio shall be given pro forma effect determined in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to accordance with Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each 1.7. Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility in the form of $25,000,000“Term A” loans (which includes that such Incremental Term Facility must be syndicated to commercial banks), shall not mature earlier than the Maturity Date (or, in the case of any Incremental Term Facility in the form of “Term B” loans, 91 days subsequent to the Maturity Date) nor have amortization of greater than 5% of the original principal amount of such Incremental Term Facility per year (except (x) with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k) and (y) for any periods after the Maturity Date); (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility amortization and maturity) they shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are be reasonably satisfactory to the Administrative Agent and if more favorable to the Borrower and (ii) no Lender under such Incremental Revolving Facility Facilities, shall have any amortization. In be added for the case benefit of any Incremental Revolving Facility that increases the commitments Lenders under the Revolving Facility or any then existing Facilities other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments than in respect of terms applicable only to periods after the Maturity Date (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums without a corresponding change to any Incremental Revolving Facility, Extended Revolving Commitments then existing Facilities). Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and any original Revolving Commitments) that have more than four different maturity dates.
(a) An proposed terms of the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and); provided that the Administrative Agent, if not already a the Swingline Lender, and the Issuing Banks shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, the Issuing Lender (to the extent such Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.4 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.2(b) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.23. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that at all references to the time date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Term Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to the incurrence of any Incremental Facility Revolving Facility, each Lender’s and the use each Additional Lender’s, if any, Pro Rata Share of proceeds thereof, each of the representations Revolving Commitments and warranties made by any Loan Party the Revolving Loans shall equal such Lender’s and such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments after giving effect to such Incremental Revolving Facility; provided further, that in or pursuant to furtherance of the Loan Documents foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be true deemed to have irrevocably sold, transferred, conveyed and correct in all material respects assigned to each other Lender and each other Additional Lender, if any (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingwithout, for the avoidance of doubt, Permitted Acquisitions increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and other Investments Revolving Loans such that, after giving effect to such assignment, each Lender and Restricted Payments)each Additional Lender, if any, shall hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
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Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity Date (in the case of an Incremental Term Facility), the Borrower may from time request (but subject, in each case, to time amend the conditions set forth in clause (b) below and the other terms set forth in this Section 2.27) (x) the Revolving Commitments be increased by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility, including term loan facilities in the form of commitments to make delayed draw term loans (which may be an increase to the Term Facility) under this Agreement in order an aggregate principal amount not to provide to exceed the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eacheach such facility, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; and, together with any Incremental Revolving FacilityCommitment Increase, the “Incremental Facilities”); provided that, provided that after giving effect to any Revolving Commitment Increase, the ratio of (i) the aggregate principal amount of the Incremental Facilities Total Revolving Commitments to (ii) Term Loans (including any unfunded commitments to make delayed draw term loans, as though such commitments were fully drawn) shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio be no greater than ten percent (determined (x10%) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood thatunderstood, if applicablefor the avoidance of doubt, that the use Borrower may request an Incremental Facility consisting solely of such proceeds Incremental Term Loans). No Lender shall be given pro forma effect obligated to participate in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each an Incremental Facility. Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under such Incremental Facility using the Ratio Incremental Amount prong of the Available Incremental Amount, then the applicable leverage ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any concurrent incurrence of indebtedness under such Incremental Facility using the Fixed Incremental Amount. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount to the extent permitted. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount to the extent that the Borrower would, at such later time, satisfy the applicable leverage ratio for the incurrence of such Indebtedness under the Ratio Incremental Amount.
(iiib) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each existing Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility unless it elects to do so in pro forma compliance its sole discretion and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent ten (10) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the financial covenants set forth proposed Incremental Facility under terms no more favorable than those initially offered to each existing Lender;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have signed an Incremental Joinder. In addition, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, may amend this Agreement (without the consent of any other Person) in order to effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 7.1 after giving effect 2.27 (any such amendment, an “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Amendment reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such compliance to Incremental Facility, the condition set forth in Section 5.2(a) may be determined satisfied with (x) on the basis accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the financial information most recently delivered to lenders providing such Incremental Facility); provided further that the Administrative Agent and condition set forth in Section 5.2(e) may be satisfied, if agreed by the Lenders lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 6.1(a8.1(a) or (bf) as though has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof on the closing date for such Incremental Facility, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence had been consummated of such Incremental Facility, the Borrower shall be in compliance with the financial covenant set forth in Section 7.1 hereof as of the first day end of the fiscal period covered thereby, (y) assuming most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility is fully drawn as of such date and (z) disregarding without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and (x) in calculating the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn and (y) in the case of any Incremental Term Facility being incurred at such leverage ratio (it being understood time in the form of commitments to make delayed draw term loans, assuming such delayed draw term loans were fully drawn); provided that, if applicable, the use Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of such proceeds shall be given pro forma effect in such calculation) and this clause (iv) at the time and after giving effect to clause (iii) above;
(v) upon the incurrence of any Incremental FacilityRevolving Commitment Increase in accordance with this Section 2.27, no Event all outstanding Loans, participations hereunder in Letters of Default Credit held by each Lender shall have occurred be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be continuing; provided thaton the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in the event that effect. as applicable;
(vii) (A) any tranche of an Incremental Term Facility is used to finance providing for a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such separate tranche of an Term Loans may provide for the ability to participate (I) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (II) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (B) no Incremental Term Facility agreeLoan shall have a final maturity date earlier (but may be later) than the Term Loan Maturity Date, (C) the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect amortization schedule of any Incremental Facility and all obligations in respect thereof Term Loan shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must not have a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans made on the Closing Date and (provided D) the Borrower at its election with the consent of the Administrative Agent, and without requiring the consent of any Lender, may effect such amendments to the Loan Documents with respect to Incremental Term Loans as may be reasonably necessary so that such Incremental Term Loans and the applicable existing Term Loans form the same class of Term Loans or so that such Incremental Term Loans are fungible with any other outstanding Term Loans, including by amending the schedule of amortization payments relating to any existing tranche of Term Loans; provided, that any such amendments will not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender immediately prior to the effectiveness of such applicable amendments;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral, or shall be unsecured. No Incremental Facility may amortize will be guaranteed by any Person other than a Guarantor hereunder or secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount, closing and upfront fees, initial commitment fees and similar fees, if any, but excluding other amounts, including customary arrangement, structuring, underwriting, amendment, consent and customary unused revolving or delayed draw commitment fees, “All-In Yield”)) applicable to any Incremental Facility secured by the Collateral on a pari passu basis with the Facilities shall not be more than 0.50% per annum higher than the All-In Yield with respect to the then existing Term Loans made on the Closing Date and the Revolving Facility (measured at the time of incurrence of such Incremental Facility) unless the Applicable Margin with respect to such Term Loans and the Revolving Facility is increased by an amount such that it is fungible equal to the difference between the All-In Yield with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled respect to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and the All-In Yield applicable to the then existing Term Loans made on the Closing Date and the Revolving Facility minus 0.50% per annum; and
(x) in the case of any Eurodollar or ABR floor applicable Incremental Term Loan incurred in the form of delayed draw term loans, as a condition of borrowing such Incremental Term Loans, immediately after the funding thereof on Pro Forma Basis, (a) with respect to such Incremental FacilityTerm Loans secured by the Collateral on a pari passu basis with the Facilities, the Consolidated First Lien Net Leverage Ratio shall not exceed 2.90 to 1.00, (b) relating with respect to such Incremental Facility Term Loans that are secured by the Collateral on a junior lien basis to the Facilities (which shall be on such terms as are reasonably satisfactory subject to the Administrative Agentan Intercreditor Agreement), the Borrower Consolidated Secured Net Leverage Ratio shall not exceed 3.40 to 1.00, and the Lenders providing (c) with respect to such Incremental Facility. The terms Term Loans that are unsecured, the Consolidated Net Leverage Ratio shall not exceed 3.90 to 1.00 (assuming the proceeds of any such Incremental Term Loans incurred at such time shall not be netted from Consolidated Funded Indebtedness for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Net Leverage Ratio, as the case may be, for purposes of this clause (x)); provided, that in the case of a Limited Condition Acquisition, the applicable leverage ratio set forth in the foregoing (a) through (c) may, at the option of the Borrower, be tested at the time the definitive agreements for such Limited Condition Acquisition are entered into; and
(xi) the Borrower shall have paid all fees and expenses in connection with the exercise of the applicable Incremental Facility shall be as set forth in Facility.
(c) Upon the applicable effectiveness of any Incremental Facility Amendment; provided that Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than amortization in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as which differ from those with respect to the Term Facility Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or the Revolving Facility, as applicable, or such terms as are otherwise be reasonably satisfactory acceptable to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility it being understood that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required terms differing from those with respect to an assignment the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Facility also receive the benefits of each such term or (2) are applicable only after the Term Loan Maturity Date). This Section 2.27 supersedes any provisions in Section 10.1 to such Additional Lender pursuant to Section 10.6) and the contrary (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than amendments of provisions that are described in Section 10.1(a) or any waiver of the Additional Lenders with respect to such Incremental Facility Amendment. No Lender condition described in Section 2.27(b)(x), which shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this governed by Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments10.1).
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Incremental Facility. The Company shall have the right, upon at least five (a5) The Borrower may from time to time amend this Agreement in order to provide Business Days’ prior written notice to the Borrower Administrative Agent, to increase the Aggregate Multicurrency Revolving Commitments and/or the Aggregate Thai Revolving Commitments or establish one or more additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder term loans (eacheach such term loan, an a “Multicurrency Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving LoansTerm Loan”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts by up to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to One Hundred Fifty Million Dollars ($150,000,000) in the provision of such Incremental Facility, aggregate or (y) assuming such Incremental Facility is fully drawn as Two Hundred Fifty Million Dollars ($250,000,000) if all or any portion of such date and (z) disregarding the proceeds of such increase or such Multicurrency Incremental Facility Term Loan are used in calculating connection with the repayment, refinancing, retirement, redemption or repurchase (including payment of any redemption premium, prepayment fees or any other related transaction fees and expenses) the Senior Notes in full at any time prior to the date that is six (6) months prior to the Maturity Date, subject, however, in any such leverage ratio (it being understood thatcase, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as to satisfaction of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(afollowing conditions precedent:
(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided thatcontinuing on the date on which such increase or Multicurrency Incremental Term Loan is to become effective;
(b) such increase or Multicurrency Incremental Term Loan shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree);
(c) such increase or Multicurrency Incremental Term Loan shall be effective only upon receipt by the Administrative Agent of (x) additional Revolving Commitments in a corresponding amount of such requested increase or Multicurrency Incremental Term Loan Commitments from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional Revolving Commitment or Multicurrency Incremental Term Loan Commitment) and (y) documentation from each institution providing an additional Revolving Commitment or Multicurrency Incremental Term Loan Commitment evidencing its additional Revolving Commitment or Multicurrency Incremental Term Loan Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(d) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such increase or establishment of such Multicurrency Incremental Term Loan and the validity of such increase or establishment of such Multicurrency Incremental Term Loan, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Company will provide to the Administrative Agent a compliance certificate from a Responsible Officer demonstrating compliance with the financial covenants hereunder after giving effect to such increase or Multicurrency Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, that the Aggregate Multicurrency Revolving Commitments and Aggregate Thai Revolving Commitments (including any incremental commitment) are fully drawn and funded, and in the event that case of any tranche of an increase or Multicurrency Incremental Term Facility is Loan to be used to finance repay, refinance, redeem, retire or repurchase any Senior Notes, after giving effect on a Limited Conditionality Acquisition and Pro Forma Basis to the extent the Additional Lenders participating in any such tranche repayment, refinancing, retirement, redemption or repurchase of an Incremental Term Facility agree, the foregoing clause Senior Notes);
(ivf) shall be tested solely if (i) any Multicurrency Revolving Loans are outstanding at the time of the execution increase in the Aggregate Multicurrency Revolving Commitments, the Company shall, if applicable, prepay one or more existing Multicurrency Revolving Loans (such prepayment to be subject to Section 3.05) in an amount necessary such that after giving effect to the increase in the Aggregate Multicurrency Revolving Commitments, each Lender will hold its pro rata share (based on its Applicable Percentage of the acquisition agreement increased Aggregate Multicurrency Revolving Commitments) of outstanding Multicurrency Revolving Loans or other similar document having similar (ii) any Thai Revolving Loans are outstanding at the time of the increase in the Aggregate Thai Revolving Commitments, the Company shall, if applicable, prepay one or more existing Thai Revolving Loans (such prepayment to be subject to Section 3.05) in an amount necessary such that after giving effect related to the increase in the Aggregate Thai Revolving Commitments, each Lender will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Thai Revolving Commitments) of outstanding Thai Revolving Loans;
(g) any increase in the Aggregate Multicurrency Revolving Commitments under this Section shall have terms identical to those for the Multicurrency Revolving Loans under this Agreement, and any increase in the Aggregate Thai Revolving Commitments under this Section shall have terms identical to those for the Thai Revolving Loans under this Agreement, except for fees payable to the Lenders providing commitments for such Limited Conditionality Acquisition. The Loans increase;
(h) amortization, pricing and Commitments in respect use of proceeds applicable to any Multicurrency Incremental Facility and all obligations in respect thereof Term Loan shall be Obligations as set forth in the definitive documentation therefor; provided that any such Multicurrency Incremental Term Loan shall have a final maturity date that is coterminous with or later than the Maturity Date, with no more than fifty percent (50%) of the principal amount of such Multicurrency Incremental Term Loan being amortized prior to the Maturity Date; and
(i) no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each or provide any Multicurrency Incremental Term Facility must have Loan, and any decision by a weighted average life Lender to maturity which is the same increase its Revolving Commitment or longer than the then remaining weighted average life to maturity of the Term Facility (provided that provide any Multicurrency Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of its sole discretion independently from any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Lender.
Appears in 1 contract
Incremental Facility. (a) The Borrower and any one or more other Persons that are Lenders or will become New Lenders may from time to time amend this Agreement in order to provide agree that such Lenders or New Lenders shall extend term commitments and make term loans thereunder by executing and delivering to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Administrative Agent an Incremental Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that Activation Notice specifying (i) the aggregate principal amount of the Incremental Facilities Term Loans to be made thereunder, (ii) the applicable Incremental Facility Closing Date and (iii) (x) the applicable Incremental Maturity Date, (y) the amortization schedule for such Incremental Loans and (z) the Applicable Margin for such Incremental Loans; provided that (A) no Default or Event of Default shall not exceed $200,000,000, plus additional amounts exist immediately before or after giving effect to the extent the Consolidated First Lien Net Leverage Ratio making of such Incremental Loans, (determined (xB) on a pro forma basis after giving effect to the provision incurrence of such Incremental FacilityLoans (after giving effect to other permitted pro forma adjustment events and any permanent repayment of Debt after the beginning of the relevant determination period but prior to or simultaneous with such Borrowing), (y1) assuming such Incremental Facility is fully drawn as of such date the Borrower shall be in compliance with the financial covenant set forth in Section 6.15 and (z2) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds Total Leverage Ratio shall be given pro forma effect 2.50 to 1.00 or less, in such calculation)) each case recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements shall have been (or shall have been required to be) delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.005.06, (iiC) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (provided that if any representation or in all respects if warranty is by its terms qualified by materiality, such representation shall be true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Loans on and as of the date that such date as if made on and as of such dateIncremental Term Loans are made, except to in the extent case of any such representation and warranty that such representations and warranties specifically refer relates to an earlier date, in which case they such representation and warranty shall be so true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; , (D) the maturity date and weighted average life to maturity of such Incremental Loans shall be no earlier than the maturity date and the remaining weighted average life to maturity, respectively, of the Tranche B Loans, (E) the interest rates, amortization schedule and prepayment premiums, if any, applicable to any Incremental Facility shall be determined by the Borrower and the Lenders thereunder, provided that if the total yield (as reasonably calculated by the Administrative Agent for both such Incremental Loans and the Tranche B Loans, including the upfront fees, any interest rate floors and any OID (as defined below), but not any arrangement, structuring, commitment or other fees payable in connection therewith that are not shared with all Lenders providing such Loans) in respect of such Incremental Loans exceeds by more than 0.50% the total yield for the existing Tranche B Loans (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Tranche B Loans and prepayment premiums, if any, shall be increased so that the total yield in respect of such Incremental Loans is no more than 0.50% higher than the total yield for the existing Tranche B Loans, provided further that if the total yield for the existing Tranche B Loans is increased pursuant to the immediately foregoing proviso as the result of any interest rate floor applicable to any Incremental Facility, such increase shall be effected solely through the implementation or, if applicable, increase, of an interest rate floor applicable to the existing Tranche B Loans, (F) for purposes of mandatory prepayments, such Incremental Loans shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Activation Notice, less favorably than) the Tranche B Loans and (G) any Incremental Facility shall be on terms and conditions to be determined by the Borrower and the applicable Incremental Lenders, provided that, to the extent such terms and conditions are not consistent with the Tranche B Term Loan Facility (except to the extent permitted above), such terms and conditions shall be reasonably satisfactory to the Administrative Agent (it being understood and agreed, however, that the terms and conditions applicable to any Incremental Facility may provide for additional or different covenants or other provisions that are agreed between the Borrower and the Lenders under such Incremental Facility and applicable only during periods after the then latest Maturity Date that is in effect on the event that any tranche of an date such Incremental Term Facility is used issued, incurred or obtained or the date on which all then existing Loans are paid in full). Notwithstanding the foregoing, (i) without the consent of the Majority Lenders, the aggregate principal amount of Incremental Loans shall not exceed $50,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to finance this paragraph shall be in a Limited Conditionality Acquisition minimum amount of at least $10,000,000 and (y) no more than three Incremental Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender which elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.16(a) shall execute a New Lender Supplement, whereupon such bank, financial institution or other entity shall become a Lender for all purposes and to the same extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing as if originally a party hereto and shall be limited to customary “specified representations” bound by and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material entitled to the interests benefits of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, each of the Lenders and parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent that extent) necessary to reflect the existence and terms of the Incremental Loans evidenced thereby. The Administrative Agent and the Borrower may, without the consent of any Lender other than the applicable Incremental Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or its applicable Subsidiary has appropriate, in the right opinion of the Administrative Agent and the Borrower, to terminate its obligations (or decline give effect to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds provisions of any Incremental Facility will be used only for general corporate purposes (includingActivation Notice and of this Section 2.16, for including any amendments necessary to treat the avoidance applicable Loans and/or Commitments of doubtthe Incremental Lenders as the same or a new “Class” or “Facility” of loans and/or commitments hereunder. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, Permitted Acquisitions pro rata borrowing and other Investments and Restricted Payments)pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to this Section 2.16.
Appears in 1 contract
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide to On or before the Maturity Date, the Borrower additional revolving loan facilities and/or increased revolving commitments in respect will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility or any other existing by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving facility hereunder credit commitments (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), ; provided that that: (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents hereunder shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except after giving effect to the extent that Incremental Facility (except in the case of any such representations representation and warranties specifically refer warranty which expressly relates to an earlier datea given date or period, in which case they such representation and warranty shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier datethe respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; provided that(ii) the Borrower shall be in compliance with all covenants, in including, without limitation, pro forma compliance with the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and Financial Covenants after giving effect to the extent Incremental Facility; and (iii) all other terms of the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in substantially identical with the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests terms of the Lenders and only to existing Revolving Credit Facility except as reasonably approved by the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations Administrative Agent.
(or decline to consummate the acquisitionb) under such agreement as a result of a breach of such representations. The proceeds of any Any Incremental Facility will be used only for general corporate purposes provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (includingincluding any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, for arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the avoidance effectiveness of doubteach Incremental Facility, Permitted Acquisitions and other Investments and Restricted Payments)if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) The Borrower may from At any time to time amend this Agreement in order to provide prior to the Tranche B --------------------- Maturity Date, the Borrower additional revolving loan facilities and/or increased revolving commitments in respect may, by notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of Term Loans and/or Revolving Facility or any other existing revolving facility hereunder Loans (eachall such Loans, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facilitycollectively, the “"Incremental Facilities”)Loans") provided, provided however, that (i) both at the aggregate principal amount time of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis any such ----------------- -------- ------- request and after giving effect to the provision of any such Incremental Facility, Loans (yi) assuming such Incremental Facility is fully drawn as of such date no Default shall exist and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect Sections 6.13, 6.14, 6.15, 6.16, 6.17 and 6.18, to the incurrence extent then applicable. The Incremental Loans (i) shall be in an aggregate principal amount of such Incremental Facilityat least $100,000,000 and not in excess of $700,000,000, such compliance to be determined (xii) on shall rank pari passu in ---- ----- right of payment and of security (including under the basis of Subsidiary Guarantee Agreement) with the financial information most recently delivered to the Administrative Agent Revolving Loans and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered therebyTerm Loans, (yiii) assuming such Incremental Facility is fully drawn as of such date shall mature no sooner than, and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicablehave a longer average weighted life than, the use of such proceeds shall be given pro forma effect in such calculation) and Tranche B Term Loans, (iv) at will not amortize (other than nominal amortization customary in the time institutional loan market) and after giving effect to will not mature earlier than eight years from the incurrence of any Incremental Facilitydate hereof, (v) shall not be available unless the Tranche A Commitments and Tranche B Commitments have been fully utilized and (vi) shall otherwise be treated no Event of Default shall have occurred and be continuing; provided thatmore favorably than the Term Loans, in the event case of term Incremental Loans, or Revolving Loans, in the case of revolving Incremental Loans (in each case, including with respect to mandatory and voluntary prepayments); provided -------- that any tranche (i) an amount not in excess of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating $100,000,000 in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time principal amount of the execution of Incremental Loans may mature on the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans Tranche A Maturity Date (and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed amortize on a pari passu pro rata basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life Tranche A Loans prior to maturity of the Term Facility such date), (provided that any Incremental Term Facility may amortize in ii) an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier equal to not more than the Final Maturity Date. excess of $100,000,000 over the amount of Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative AgentLoans, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be if any, maturing as set forth in the applicable Incremental Facility Amendment; provided that clause (i) other than amortization may mature on the Tranche B Maturity Date (and amortize on a pro rata basis with respect the then remaining Tranche B Loans prior to any Incremental Term Facilitysuch date), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (iiiii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments terms and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).conditions
Appears in 1 contract
Sources: Credit Agreement (McLeodusa Inc)
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each 150,000,000. Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility shall not mature earlier than the Revolving Termination Date nor have amortization of $25,000,000greater than 5% or less of the original principal amount of such Incremental Term Facility per year, (iii) the Borrower Applicable Margin, Commitment Fee Rate and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Borrower pursuant to this Section 2.19 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and, if not already a Lender, ); provided that the Administrative Agent shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agentto such Additional Lender’s providing such Incremental Facility, the Issuing Lender (to the extent if an Incremental Revolving Facility, if such consent would be required with respect to under Section 10.6 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(d) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)2.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time and from time to time amend (but not to exceed four (4) increases in the aggregate) during the Commitment Period, to incur additional Indebtedness under this Credit Agreement in order to provide the form of term loans (each an “Incremental Term Loan”) and/or increases to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Committed Amount (each, an “Incremental Revolving Facility” Revolver”; each Incremental Term Loan and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eachRevolver, an “Incremental Term Facility” ”) by an aggregate amount of up to $150,000,000. The following terms and loans pursuant thereto “conditions shall apply to each Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that : (i) the aggregate principal amount loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) any such Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms as the existing Revolving Loans and shall be considered Revolving Loans hereunder and (2) made pursuant to an Incremental Term Loan shall have a maturity date no sooner than the Term Loan Maturity Date, a weighted average life to maturity no shorter than the weighted average life to maturity of the Incremental Facilities shall not exceed $200,000,000Term Loan and such other terms and documentation that, plus additional amounts to the extent not consistent with the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental FacilityTerm Loan, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall will be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered reasonably satisfactory to the Administrative Agent and at the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00time of such Incremental Term Loan, (iiiii) each any such Incremental Facility shall be in a minimum aggregate principal amount of $25,000,00025,000,000 and integral multiples of $5,000,000 in excess thereof, (iiiiv) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (v) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (vi) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (vii) the Administrative Agent shall have received an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent, (viii) the Credit Parties and the Mortgage Trustee shall enter into contemporaneously with such Incremental Facility becoming effective an amendment to the Vessel Fleet Mortgage to increase the amount of Credit Party Obligations secured thereby by the amount of the Incremental Facility and (ix) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility and the borrowings thereunder on a Pro Forma Basis, the Borrower will be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental FacilityArticle VI, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) no Default or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, exist. Participation in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on offered first to each of the existing Lenders, but each such terms as are reasonably satisfactory Lender shall have no obligation to provide all or any portion of the Administrative Agent, Incremental Facility and the failure of a Lender to respond to such offer within the specified period of time shall be deemed a rejection of such offer by such Lender. If the amount of the Incremental Facility requested by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases exceed the commitments under which the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory Lenders are willing to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders provide with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of any such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall become Commitments under enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement. An Incremental Facility Amendment may, without the consent of Credit Agreement or any other Lenders, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness terms of any new Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)therein.
Appears in 1 contract
Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity Date (in the case of an Incremental Term Facility), the Borrower may from time request (but subject, in each case, to time amend the conditions set forth in clause (b) below) (x) the Revolving Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in order an aggregate principal amount not to provide to exceed the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eacheach such facility, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; and, together with any Incremental Revolving FacilityCommitment Increase, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities . No Lender shall not exceed $200,000,000, plus additional amounts be obligated to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such participate in an Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each . Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, (iiiif the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower shall incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio (and, following a Junior Debt Incurrence Event, the Consolidated Senior Net Leverage Ratio) will be in pro forma compliance calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the financial covenants set forth balance incurred under the Fixed Incremental Amount. The Borrower may, in Section 7.1 after giving effect to the incurrence of such Incremental Facilityits sole discretion, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the of incurrence of any Incremental Facility, no Event or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of Default the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have occurred delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be continuing; provided that, in the event obligated to provide an Incremental Facility and that any tranche Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of an such requested Incremental Term Facility is used or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to finance a Limited Conditionality Acquisition participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible connection with the Term Loan proposed Incremental Facility;
(ii) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled each Lender agreeing to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and participate in any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such , the Borrower and the Administrative Agent have signed an Incremental Facility shall be on such terms as are reasonably satisfactory to Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders providing agreeing to such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section (including to provide for voting provisions applicable 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the Additional Lenders). The effectiveness contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility Amendment shallFacility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, unless otherwise each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Administrative Agent Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the Additional Lenderslenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, be subject if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to the satisfaction on the date thereof Section 8.1(a) or (each, an “Incremental Facility Closing Date”f) that at the time and has occurred or is continuing;
(iv) after giving pro forma effect to the incurrence of any such Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant subject to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as provisions of such date as if made on and as of such date, except Section 1.5 to the extent that an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such representations and warranties specifically refer to an earlier dateIncremental Facility, in which case they the Borrower shall be true and correct in all material respects (or compliance with the then applicable financial covenants set forth in all respects if qualified by materiality) on and Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such earlier dateIncremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio (or, following a Junior Debt Incurrence Event, from the calculation of the Consolidated Senior Net Leverage Ratio) and in the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that, in the event that any tranche of an Incremental Term Facility is used (A) prior to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeJunior Debt Incurrence Eventthe March 31, 2024, Financial Statement Delivery Date, the foregoing Consolidated Net Leverage Ratio shall not be limited to customary “specified representations” greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders (B) from and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as after a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingJunior Debt Incurrence Eventthe March 31, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).2024,
Appears in 1 contract
Incremental Facility. The First Lien Incremental Revolving Lender hereby agrees that its respective First Lien Incremental Revolving Commitment and, to the extent applicable, its respective Incremental Loans will be made on the following terms and conditions:
a. Subject solely to the conditions set forth in Section 3 below, as of the Effective Date (ax) The Borrower may from time to time amend this Agreement in order the First Lien Incremental Revolving Lender hereby agrees to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect its respective portion of the Revolving Facility or any other existing revolving facility hereunder (each, an “First Lien Incremental Revolving Facility” and loans pursuant thereto Commitments as set forth on Schedule 1.1(b) annexed hereto under the heading “First Lien Incremental Revolving LoansCommitments”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any .
b. The First Lien Incremental Revolving Facility, the “Incremental Facilities”), provided that Lender (i) the aggregate principal amount confirms that it has received a copy of the Incremental Facilities Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not exceed $200,000,000, plus additional amounts taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the extent Administrative Agent or the Consolidated Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender and as an Incremental Lender.
c. Except as expressly set forth in this Agreement, for all purposes under the Credit Agreement and the other Credit Documents, the First Lien Net Leverage Ratio Incremental Revolving Commitments will have the same terms, and be treated as the same Class, as the Revolving Credit Commitments and the First Lien Incremental Loans shall have the same terms, and be treated as the same Class, as the Revolving Credit Loans (determined including for purposes of mandatory prepayments and voluntary prepayments). On and after the Effective Date, each reference in the Credit Agreement to (i) “Revolving Credit Commitments” shall be deemed to include a reference to the First Lien Incremental Commitments contemplated hereby and (ii) “Revolving Credit Loans” shall be deemed to include a reference to the First Lien Incremental Loans, except in each case as the context may otherwise require. For the avoidance of doubt, (x) on a pro forma basis the Incremental Revolving Credit Maturity Date for the First Lien Incremental Revolving Commitments and for the First Lien Incremental Loans shall be the Revolving Credit Maturity Date and (y) the Applicable Margin and the Commitment Fee Rate for the First Lien Incremental Loans shall be the same as for the Revolving Credit Loans and Revolving Credit Commitments.
d. Upon giving effect to the First Lien Incremental Revolving Commitments, the Revolving Loans shall be reallocated among the Lenders (including the First Lien Incremental Revolving Lenders) in accordance with their respective Revolving Credit Commitment Percentage (calculated after giving effect to the provision of First Lien Incremental Revolving Commitments) (with such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance reallocation to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) effected as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured directed by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, including through the Borrower funding of new Revolving Loans and the Lenders providing such Incremental Facility. The terms repayment of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the existing Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted PaymentsLoans).
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightView Holdings, Inc.)
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) with respect to any Incremental Facilities provided after the Amendment No. 3 Effective Date, the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000(A) any amount, plus additional amounts to the extent so long as the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is equal to or less than 2.50:1.003.00:1.00 plus (B) $200,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 7.1(a) after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, Agent and the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) The Borrower Company may from time to time amend this Agreement in order to provide to the Borrower Company additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Loan Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Loan Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date 750,000,000 and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall . Each Incremental Facility will be in pro forma compliance secured and guaranteed with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed Facilities on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documentsbasis. Each Incremental Term Facility must have a weighted an average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term original comparable Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) taken as a whole and a final maturity no earlier than the Final Maturity Datecomparable Facility. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility Facilities unless the applicable Incremental Facility Amendment Activation Notice specifies a lesser treatment. Each An Incremental Revolving Facility shall have may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof (x) no Default or Event of Default exists and (y) the Consolidated Total Net Leverage Ratio for the most recently ended fiscal quarter (calculated on a final maturity no earlier than pro forma basis, as reasonably determined by the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable Company after consultation with the Administrative Agent, to all Lenders providing give effect to the Loans to be made pursuant to such Incremental Facility and any Eurodollar the Permitted Acquisition and other permitted uses made with the proceeds thereof) shall be equal to or ABR floor less than the then applicable to such Incremental FacilityConsolidated Total Net Leverage Ratio Level, provided that the requirement under clause (y) relating to such shall not apply if the proceeds of the Incremental Facility shall be on such terms as are reasonably satisfactory used to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms repay all or a portion of the applicable Existing Convertible Subordinated Notes. Proceeds of Incremental Facility shall Facilities may be as set forth used only for the purposes specified in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent subsections 4.3 and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates7.3.
(ab) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof an Incremental Facility Activation Notice executed by the Borrower. Any additional bank, Company and the financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall institutions (who must be reasonably satisfactory acceptable to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender Company and the Administrative Agent. No ) identified as “Incremental Lenders” therein who have executed such Incremental Facility Amendment Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall require the consent of any become Lenders other than the Additional Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Amendment. No Lender Activation Notice shall be obligated to provide any specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) the applicable Incremental Facility Effective Date, (iii) the applicable maturity date for the Incremental Facility, unless it so agrees. Commitments (iv) the amortization schedule or revolving credit period, as applicable, applicable to such Incremental Facility, (v) whether such Incremental Lenders are entitled to share in respect of any mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall become Commitments under be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable make Incremental Loans to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction Company on the date thereof (each, an “or during the periods specified in such Incremental Facility Closing Date”) that at the time and after giving effect Activation Notice. Nothing in this subsection 16.13 shall be construed to the incurrence of obligate any Lender not party to such Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant Activation Notice to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of execute an Incremental Term Facility is used Loan Activation Notice or to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an make Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Loans.
Appears in 1 contract
Incremental Facility. (a) The Borrower may Company shall have the right, from time to time amend this Agreement in order time, to provide to the Borrower request additional revolving term loans (each such loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving LoansLoan”) and additional term loan facilities hereunder pursuant to an incremental facility (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesFacility”), provided that (i) at the aggregate principal amount time any tranche of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts Loans is issued pursuant to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (ya) assuming such Incremental Facility is fully drawn as no Unmatured Event of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) Default or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided thatcontinuing or result from the issuance of such Incremental Loans, in (b) the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and Company shall have delivered to the extent Administrative Agent a Compliance Certificate, completed on a pro forma basis, giving effect to the Additional Lenders participating in such tranche Incremental Loans, (c) the aggregate principal amount of an Incremental Term Facility agree, all tranches under the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof hereunder shall not exceed $200,000,000, (d) each tranche must be Obligations under a term loan which is governed by the terms of this Agreement and the other Loan Documents that are secured by with terms and conditions no more restrictive than those in effect with respect to the Collateral and guaranteed on then existing Facilities, (e) the Company or a pari passu basis with all other applicable Obligations under this Agreement and Restricted Subsidiary Obligor which is a U.K. Subsidiary or a U.S. Subsidiary must be the other Loan Documents. Each borrower (an “Incremental Term Facility must have a Borrower”) thereunder, (f) the weighted average life to and final maturity which is the same or of each tranche shall be at least six months longer than the then remaining weighted average life to and final maturity of the Term Facility B Loans, (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facilityg) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than interest rates may differ from the Final Revolving Termination Date. The then existing Facilities, provided, however, if the Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Loans is more than 25 basis points higher than the Applicable Margin for the Term Facility is used to finance a Limited Conditionality Acquisition and to B Loans, the extent Applicable Margin for the Additional Lenders participating in Term B Loans shall be proportionately adjusted such that the Applicable Margin for any tranche of an Incremental Loans is no more than 25 basis points higher than the Applicable Margin for the Term Facility agreeB Loans, the foregoing and (h) any Incremental Loans shall be limited to customary “specified representations” issued at a price (including upfront fees and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests original issue discount, if any) not lower than 99.50% of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)par.
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (Hollinger International Inc)
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Facility Lenders), request one or any other existing more additional tranches of term loans, revolving facility hereunder facilities or letter of credit facilities (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence effectiveness of any Incremental FacilityAmendment referred to below, no Default or Event of Default shall have occurred and be continuing; provided that, (ii) the Borrower shall be in compliance with the event that covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any tranche of an term loans under such Incremental Term Facility is used to finance a Limited Conditionality Acquisition had been outstanding and any revolving commitment under such Incremental Facility (to the extent not available to issue letters of credit) had been fully used on the Additional Lenders participating in last day of such tranche period and (iii) the Consolidated Leverage Ratio determined on a pro forma basis as of an the last day of the most recent fiscal quarter of the Borrower for which financial statements are available, determined as if any term loans under such Incremental Term Facility agreehad been outstanding on the last day of such period, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related less than 2.5 to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents1.0. Each Incremental Term Facility must shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and there shall be not more than 3 requests for Incremental Facilities. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities (including the Incremental Revolving Facility) shall not exceed $200,000,000. Any Incremental Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Maturity Date or have a weighted average life to maturity (if applicable) which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans, and (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facilityc) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall otherwise be on such terms as are reasonably satisfactory and pursuant to the Administrative Agent, documentation to be determined by the Borrower and the Lenders providing Persons willing to provide such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; , provided that (iA) to the extent such terms and documentation are not consistent with the Facilities (other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility amortization and maturity) they shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are be reasonably satisfactory to the Administrative Agent and (B) if the Applicable Margin (which term for purposes of this Section 2.20 shall include any original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower and to the lenders under any applicable Facility (ii) no Incremental Revolving Facility shall have any amortization. In the case of which, for any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit consisting of a term loan facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time Term Facility and for any Incremental Facility consisting of a revolving loan facility shall there be Revolving Commitments hereunder (including revolving commitments in respect of any the Incremental Revolving Facility) or the Incremental Facility, Extended Revolving Commitments and as applicable, in the primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility exceeds the Applicable Margin relating to the applicable Facility immediately prior to the effectiveness of the applicable Incremental Amendment, the Applicable Margin relating to such Facility shall be made available hereunder upon delivery adjusted to equal the Administrative Agent Applicable Margin relating to such Incremental Facility. Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of notice thereof executed the relevant Incremental Facility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and), if not already a Lender, provided that the Administrative Agent shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender’s or delayed) of the Administrative Agent, the Issuing Lender (to the extent Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.6 for an assignment of Loans to such Lender or Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.20. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations conditions set forth in Section 5.2 (it being understood that all references to the Delayed Draw Funding Date or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and warranties made such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Loan Party Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in or this Agreement shall not apply to the transactions effected pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) The At any time during the Revolving Commitment Period, the Borrower may request from time to time amend this Agreement from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, the Issuing Lender, the Swingline Lender and the Borrower (but subject to the conditions set forth in order clause (b) below) that the Total Revolving Commitments be increased by an amount not to exceed the Available Revolving Increase Amount (each such increase, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions during the Revolving Commitment Period starting from the Fourth Amendment Effective Date. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Revolving Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more than its Revolving Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their Revolving Percentage) and to the extent, 5 Business Days after receipt of invitation, sufficient Lenders do not agree to provide the full amount of such Increase, then the Administrative Agent shall use its best efforts to arrange for any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Increase. Any Increase shall be in an amount of at least $5,000,000 (or, if the Available Revolving Increase Amount is less than $5,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolving Commitments exceed the Available Revolving Increase Amount during the term of the Agreement. Each request for an Increase delivered by the Borrower additional revolving loan facilities and/or increased revolving commitments in respect to the Administrative Agent shall set forth the amount and proposed terms of the Increase.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that Commitments in connection therewith:
(i) any Increase shall be on the aggregate principal same terms (including the interest rate, and maturity date), as applicable, as, and pursuant to documentation applicable to, the Revolving Facility then in effect; provided that any such Increase may provide for terms (including interest rate) more favorable to such Increase lenders, if any existing Revolving Loans at the time of such Increase are also provided the benefit of such more favorable terms (and the consent of any existing Revolving Lender shall not be required to implement such terms); provided further, that any fees shall be agreed between the Borrower and the lenders providing such Increase;
(ii) the Borrower shall have delivered a written request for such Increase at least 10 Business Days prior to the requested establishment of such Increase (or such later date as may be reasonably approved by the Administrative Agent), which request shall set forth the amount and proposed terms of the Incremental Facilities Increase;
(iii) each lender agreeing to such Increase, the Borrower and the Administrative Agent shall have signed an Increase Joinder (any Increase Joinder may, with the consent of the Administrative Agent, the Borrower and the lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27 (including the preceding clause (ii))), the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase, and the Loan Parties shall have delivered any legal opinions, resolutions and customary closing certificates requested by the Administrative Agent. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not exceed $200,000,000require the consent of any Lender other than the Lender(s) agreeing to establish such Increase;
(iv) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, plus additional amounts each of the conditions precedent in Section 5.2(a) are satisfied (other than in connection with Limited Condition Acquisitions, in which case (i) Section 5.2(a) shall be satisfied only in connection with the Specified Representations and (ii) the Specified Acquisition Agreement Representations shall be true and correct on the date Loans are made under the Increase, but only to the extent that the Consolidated First Lien Net Leverage Ratio Borrower (determined or any of its Affiliates) has the right (xtaking into account any applicable cure provisions) on to terminate its (or such Affiliates’) obligations under the Limited Condition Acquisition Agreement, or to decline to consummate the Limited Condition Acquisition Agreement (in each case, in accordance with the terms thereof) as a result of a breach of such Specified Acquisition Agreement Representations);
(v) immediately after giving pro forma basis effect to such Increase and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase (other than in connection with Limited Condition Acquisitions, in which case there shall be no Default or Event of Default as of the LCA Test Date and no Event of Default under Section 8.1(a) or (f) immediately after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date Increase and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)thereof) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iiiB) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to hereof as of the incurrence end of such Incremental Facility, such compliance the most recently ended quarter for which financial statements are required to be determined (x) on delivered prior to such Increase, and the basis of the financial information most recently Borrower shall have delivered to the Administrative Agent and a Compliance Certificate evidencing compliance with the Lenders pursuant to Section 6.1(arequirements of this clause (v) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche case of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and Condition Acquisition, such calculation shall be made in compliance with Section 1.6);
(vi) in connection with such Increase, the Borrower shall pay to the extent Administrative Agent, for the Additional Lenders participating benefit of the Administrative Agent or the Increase lenders, as applicable, all fees that the Borrower has agreed to pay in connection with such tranche Increase (including pursuant to the Fee Letter); and
(vii) upon each Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of an Incremental Term Facility agree, the foregoing clause (iv) Credit and participations hereunder in Swingline Loans held by each Lender shall be tested solely at reallocated among the time of Lenders (including any newly added Lenders) in accordance with the execution of Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments Administrative Agent in respect consultation with the Borrower.
(c) Upon the effectiveness of any Incremental Facility and Increase, (i) all obligations references in respect thereof shall be Obligations under this Agreement and the any other Loan Documents that are secured by Document to the Collateral Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.27 and guaranteed on a pari passu basis with any amendments effected through the Increase Joinder and (ii) all references in this Agreement and any other applicable Obligations under Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.27.
(d) The Revolving Loans and Revolving Commitments established pursuant to this Section 2.27 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is , and shall, without limiting the same or longer than foregoing, benefit equally and ratably from any guarantees and the then remaining weighted average life to maturity of security interests created by the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination DateDocuments. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and Borrower shall take any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are actions reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the required by Administrative Agent to ensure and demonstrate that the Borrower Liens and (ii) no Incremental Revolving Facility shall have any amortization. In security interests granted by the case of any Incremental Revolving Facility that increases the commitments Loan Documents continue to be perfected under the Revolving Facility UCC or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence establishment of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)new Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Fastly, Inc.)
Incremental Facility. (a) The Borrower may At any time and from time to time amend this Agreement in order to provide time, subject to the terms and conditions set forth herein, the Borrower additional revolving loan facilities and/or increased revolving commitments in respect may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Facility Lenders), request to add one or any other existing revolving facility hereunder more additional tranches of term loans (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto the “Incremental Term Loans”; together with any Incremental ) or one or more increases in the Revolving Facility, Commitments (the “Incremental FacilitiesRevolving Commitments”), provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (iA) no Default or Event of Default has occurred and is continuing or shall result therefrom, (B) the aggregate principal amount of the Incremental Facilities Borrower shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) be in compliance on a pro forma basis after giving effect to Pro Forma Basis with the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date covenants contained in Sections 6.12 and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) 6.13 recomputed as of the last day of the most most-recently ended fiscal quarter Test Period for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a5.01(a) or (b) is less than 2.50:1.00), (iiC) each Incremental Facility the Senior Secured Leverage Ratio of the Borrower, computed on a Pro Forma Basis as of the last day of the most-recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b), shall be in a minimum aggregate principal amount no greater than the Senior Secured Leverage Ratio of $25,000,000, (iii) the Borrower shall be in pro forma compliance with on the financial covenants set forth in Section 7.1 Effective Date (after giving effect to the incurrence Transactions) and (D) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A), (B) and (C) above, together with reasonably detailed calculations demonstrating compliance with clauses (B) and (C) above. Notwithstanding anything to contrary herein, the principal amount of any Incremental Term Loans or Incremental Revolving Commitments shall not exceed the Incremental Amount at such time. Each tranche of Incremental FacilityTerm Loans and Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $50,000,000 in case of Incremental Term Loans or $25,000,000 in case of Incremental Revolving Commitments, provided that such compliance to amount may be determined less than the applicable minimum amount if such amount represents all the remaining availability under the Incremental Amount set forth above.
(xb) on the basis Any Incremental Term Loans (i) shall rank pari passu or junior in right of payment in respect of the financial information most recently delivered Collateral and with the Obligations in respect of the Revolving Commitments, the Tranche B Term Loans and the Tranche B Euro Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans and Tranche B Euro Term Loans and (iii) other than amortization, pricing or maturity date, shall have the same terms as the Tranche B Term Loans or such terms as are reasonably satisfactory to the Administrative Agent and Agent, provided that (A) if the Lenders pursuant to Section 6.1(a) or Applicable Rate (b) as though which, for such incurrence had been consummated as of the first day of the fiscal period covered therebypurposes only, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect deemed to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility Term Loans and any Eurodollar LIBO or ABR floor applicable to such Incremental FacilityTerm Loans) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, and any EURO LIBO, LIBO or ABR floor applicable to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable) relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR floor applicable to such Incremental Term Loans) relating to such Incremental Facility Term Loans minus 0.25%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche B Maturity Date or the Tranche B Euro Maturity Date, as applicable, and (C) any Incremental Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche B Term Loans or Tranche B Euro Term Loans, as applicable. Any Incremental Revolving Commitment shall be on such terms as are reasonably satisfactory (other than pricing) and pursuant to the Administrative Agentdocumentation applicable to the Revolving Commitments; provided that if the Applicable Rate (which, the Borrower and the for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility. The terms Revolving Commitments and any LIBO or ABR floor applicable to such Incremental Revolving Commitments) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Commitments) relating to the Revolving Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Revolving Commitments shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect adjusted to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory be equal to the Administrative Agent and the Borrower and Applicable Rate (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunderwhich, the manner in which for such increase is implemented purposes only, shall be reasonably satisfactory deemed to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Revolving Facility, Extended Revolving Commitments and any original LIBO or ABR floor applicable to such Incremental Revolving Commitments) that have more than four different maturity datesrelating to such Incremental Revolving Commitments minus 0.25%.
(ac) An Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the BorrowerTerm Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans Incremental Term Loans or commitments under an Incremental Facility Revolving Commitments shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide provided any Incremental FacilityTerm Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Facility Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional LendersLenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party conditions set forth in or pursuant Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representationsClosing Date). The proceeds of any Incremental Facility Term Loans will be used only for general corporate purposes (includingincluding Permitted Acquisitions). Upon each increase in the Revolving Commitments pursuant to this Section, for each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the avoidance Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of doubtsuch increase, Permitted Acquisitions and other Investments each such Incremental Revolving Lender will automatically and Restricted Payments)without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facility. (a) The Borrower may and the Co-Borrower may, by written notice to the Administrative Agent from time to time amend this Agreement request Incremental Term Loans and/or Incremental Revolving Commitments in order an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect approval (which approval shall not be unreasonably withheld or delayed) of the Revolving Facility Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Loans”Lenders only, the Issuing Lender. Such notice shall set forth (i) and additional term loan facilities hereunder (each, an “the amount of the Incremental Term Facility” and loans pursuant thereto “Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal 509265-1496-1626614997-Active.24788754.1135668272.3 to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”; together ) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower, the Co-Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loans of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. If at the time of any Incremental Revolving FacilityCommitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder (including any “most favored nation” pricing provisions applicable to such Incremental Facilities”Term Loans), ; provided that (i) the aggregate principal amount maturity date of the any Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds Term Loan shall be given pro forma effect in such calculation)) as of no earlier than the last day of maturity date for the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00existing Term Loans, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer of any Incremental Term Loan shall be no shorter than the then remaining weighted average life to maturity of the existing Term Facility Loans (provided that other than as necessary, if applicable, to make such Incremental Term Loan fungible with the existing Term Loans), (iii) if the total yield in respect of any Incremental Term Facility Loans that would be considered tranche A term loans under then-existing customary market convention exceeds the total yield for the existing Term Loans by more than ½ of 1% (it being understood that any such excess may amortize in an amount such that it is fungible with take the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or form of original issue discount payable (“OID”), with OID being equated to all Lenders providing the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to Term Loans is no more than ½ of 1% higher than the Administrative Agent, total yield for the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendmentexisting Term Loans; provided that (i) other than amortization (with respect that, in determining the interest rate margins applicable to any Incremental Term Facility)Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, pricing underwriting or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory similar fee paid to the Administrative Agent or the arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans, (v) the Incremental Term Loans shall share ratably in any optional or mandatory prepayments of the Term Facility unless the lenders with respect to the applicable Incremental Term Loans and the Borrower agree to a less than ratable share of such prepayments and (iivi) no to the extent the terms or documentation for Incremental Revolving Facility shall have any amortization. In Term Loans are not consistent with the case terms of any Incremental Revolving Facility that increases the commitments under existing Term Loans (except to the Revolving Facility or any other existing revolving credit facility hereunder, extent permitted by the manner in which such increase is implemented foregoing clauses (i) through (iii) and clause (v)) they shall be reasonably satisfactory to the Administrative Agent. At no time The Administrative Agent shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery promptly notify each Lender as to the Administrative Agent effectiveness of notice thereof executed by the Borrowereach Incremental Assumption Agreement. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) Each of the Administrative Agentparties hereto hereby agrees that, upon the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shallAssumption Agreement, unless otherwise agreed this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).with the
Appears in 1 contract
Sources: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide may, on or after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Facility Lenders), request one tranche of new Indebtedness (either in the form of second lien subordinated term loans or any other existing revolving second lien secured subordinated notes) in a separate facility hereunder from the outstanding Term Loans (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesFacility”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) both at the time of any such request and after giving effect to the incurrence effectiveness and funding of any the Incremental Facility, no Default or Event of Default shall exist and at the time that any such Incremental Facility is made or effected (and after giving effect thereto), the conditions in Section 5.15 shall be satisfied and (ii) the Final Order Entry Date shall have occurred occurred.
(b) The aggregate principal amount of all Indebtedness under the Incremental Facility shall not exceed $3,000,000,000 (the “Incremental Limit”).
(c) Indebtedness under the Incremental Facility (i) shall rank junior in right of payment and be continuing; of security with all Term Loans, (ii) shall not mature earlier than the Latest Maturity Date (after giving effect to any and all extensions provided that, for in the event that any tranche proviso in the definition of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition “Maturity Date” whether or not such extensions have actually become effective) and to shall require no scheduled amortization, (iii) shall have interest rates, interest margins, rate floors, fees, funding discounts and premiums determined by the extent Borrower and the Additional Lenders participating in such tranche of an Incremental Term Facility agreelenders thereof, the foregoing clause (iv) shall be tested solely at the time exceptions and “baskets” to the covenants and events of default under the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments increased from the corresponding exceptions and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies “baskets” herein in a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are manner reasonably satisfactory to the Administrative Agent, and (v) may have terms and conditions different from those of the Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above or with respect to immaterial terms, any differences must be reasonably acceptable to the Administrative Agent.
(d) The principal amount of the Incremental Facility (including any principal amount arising in connection with “pay-in-kind” fees or interest) shall not be required to be repaid in cash; and, subject to the proviso to this clause (d), at the final maturity of the Incremental Facility (which shall occur at the exit of the EFIH Debtors from the Cases), the principal amount (including any principal amount arising in connection with “pay-in-kind” fees or interest) of the Indebtedness under the Incremental Facility shall be converted into equity in accordance with an Acceptable Reorganization Plan; provided that nothing herein shall prevent a refinancing and/or repayment of the Incremental Facility at the exit of the EFIH Debtors from the Cases if (x) such refinancing and/or repayment occurs after the Obligations (other than Hedging Obligations under Secured Hedging Agreements and/or Cash Management Obligations under the Secured Cash Management Agreements or Contingent Obligations) have been repaid in full in cash and (y) the Acceptable Reorganization Plan permits the Borrower to make such repayment and/or incur Indebtedness to refinance the Incremental Facility.
(e) The proceeds of the Incremental Facility shall be used solely to repay in full the Prepetition Second Lien Obligations, and all interest, premium, fees, and expenses incurred in connection with such repayment and the Lenders providing such incurrence of the Incremental Facility.
(f) The notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the Incremental Facility. The terms of the applicable Incremental Facility shall may be as set forth in the applicable Incremental Facility Amendment; provided by any existing Lender (it being understood that (i) other than amortization (with respect no existing Lender will have an obligation to any Incremental Term Facility), pricing or maturity date, each make a portion of the Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility the Borrower shall have no obligation to offer any amortization. In existing Lender the case of any opportunity to provide the Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates).
(ag) An The effectiveness and borrowing of the Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (eachof the conditions in Section 5.15 and such other conditions as the parties thereto shall agree, including the execution of an “Incremental Facility Closing Date”) that at the time and after giving effect intercreditor agreement acceptable to the incurrence of any Incremental Facility Administrative Agent and the use of proceeds thereofLenders under the Incremental Facility, each of which intercreditor agreement shall provide that until the representations Obligations (other than Hedging Obligations under Secured Hedging Agreements and/or Cash Management Obligations under the Secured Cash Management Agreements or Contingent Obligations) are paid in full, the Administrative Agent will control at all times all remedies and warranties made by any Loan Party in or pursuant other actions related to the Loan Documents shall be true Collateral, and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has secured parties under the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will not be used only for general corporate purposes entitled to take any action with respect to the Collateral (including, for other than limited actions to preserve and protect the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Paymentsliens securing the Incremental Facility that do not impair the liens securing the Obligations).
Appears in 1 contract
Incremental Facility. (a) The After the Closing Date and subject to the terms and conditions of this Agreement, the Borrower may from time request an Incremental Facility Commitment on any Business Day in the form of (i) one or more new Term Loan facilities and/or (ii) an increase in the existing Term Loan by sending notice thereof to time amend the Administrative Agent for distribution to the Lenders; provided, however, (A) the aggregate principal amount of any Incremental Facility Loan during the term of this Agreement in order shall not exceed the Incremental Facility Amount, (B) after giving effect on a Pro Forma Basis to provide such Incremental Facility Loan and any Permitted Acquisition or Investment made with the proceeds thereof, the Consolidated Total Net Leverage Ratio shall be less than the maximum amount permitted pursuant to Section 7.8(a), (C) the Borrower additional revolving loan facilities and/or increased revolving commitments may not request an Incremental Facility Commitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Facility Loan and the anticipated use of proceeds thereof (unless the Lenders providing such Incremental Facility Loan otherwise agree), (D) (1) each request for an Incremental Facility Commitment shall be in respect a minimum principal amount of $5,000,000 and (2) on the effective date of the Revolving requested Incremental Facility or any other existing revolving facility hereunder Commitment (each, an “Incremental Revolving Facility” after giving effect thereto and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (iuse of proceeds thereof) the aggregate principal amount of the outstanding Incremental Facilities Facility Loans shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental FacilityFacility Amount, (yE) assuming such the maturity date for Incremental Facility is fully drawn as of such Loans shall not be earlier than the date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants certain set forth in Section 7.1 after giving effect to the incurrence definition of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered therebyTerm Loan Maturity Date, (yF) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Weighted Average Life to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect Maturity of any Incremental Facility Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans and all obligations (G) except as set forth in this Section 2.17 with respect thereof to maturity, amortization and all-in yield, any Incremental Facility Loans shall have the same terms as the existing Term Loans or shall have terms that are not more restrictive to the Borrower and its Subsidiaries than the terms applicable to the existing Term Loans. Any Incremental Facility Commitment shall be Obligations under this Agreement and the other Loan Documents that are secured governed by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under related Notice of Incremental Facility Commitment, this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity The Borrower may seek commitments in respect of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Commitments from existing Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be lenders reasonably satisfactory to the Administrative Agent. At no time The decision of any Lender to provide an Incremental Facility Commitment to the Borrower shall there be Revolving Commitments hereunder (including revolving commitments at such Lender’s sole discretion and shall be made in writing. No Lender shall have an obligation to participate in any Incremental Facility Commitment. Amendments to this Agreement that are required to give effect to an Incremental Facility shall only require the consent of the Borrower and Administrative Agent, except to the extent that a specific Lender’s consent is otherwise required with respect to an issuance by such Lender of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity datesFacility Commitment.
(ab) An Prior to the effectiveness of an Incremental Facility Commitment, the Borrower shall be made available hereunder upon delivery (i) deliver to the Administrative Agent for distribution to the Lenders a Notice of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory Commitment in substantially the form of Exhibit F attached hereto and (ii) provide revised Projections to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to Administrative Agent upon the consent (not to be unreasonably withheld or delayed) reasonable request of the Administrative Agent, which shall be in substantially the Issuing Lender (same form as the Projections delivered to the extent such consent would be required with respect Administrative Agent prior to an assignment the Closing Date and which shall set forth the Consolidated Total Net Leverage Ratio, after giving effect to such Additional Incremental Facility Commitment (and the anticipated use of proceeds thereof). The Incremental Facility Commitment and each Loan made under the Incremental Facilities shall be in the form of and constitute an Advance that shall be made subject to all of the terms and conditions contained in this Agreement (including, without limitation, the conditions set forth in Section 3.2, except as otherwise provided in this Section 2.17) applicable to, and shall constitute and comprise a portion of, the Loans and Obligations and, except as otherwise provided in this Section 2.17, shall be on terms substantially consistent with, and no more favorable than, those applicable to the Term Loans.
(c) No Incremental Facility Commitment or Incremental Facility Loan shall by itself result in any reduction of the Revolving Commitment, Term Loan Commitment, Revolving Commitment Ratio or Term Loan Commitment Ratio of the Lender pursuant making such Incremental Facility Commitment.
(d) Incremental Facility Loans (i) subject to Section 10.6) 2.17(a), shall be repaid as agreed to by the Borrower and the Lenders making such Incremental Facility Loans; (ii) become shall for all purposes be Loans and Obligations hereunder and under the Loan Documents; (iii) shall, if requested by a Lender under this Agreement pursuant to providing an amendment (an “Incremental Facility Amendment”Commitment, be represented by Incremental Facility Notes in substantially the form of Exhibit F attached hereto; and (iv) to this Agreement and, as appropriate, shall rank pari passu with the other Loan DocumentsLoans for purposes of Sections 2.10 and 8.2.
(e) Subject to Section 2.17(a), executed unless otherwise agreed by the Borrower, each Additional Lender Credit Parties and the Administrative Agent. No , Incremental Facility Amendment Loans shall require be subject to the consent pricing, interest rate and amortization provisions of this Agreement then applicable to Term Loans; provided, the interest rate margins (excluding arrangement, commitment, structuring and underwriting fees and amendment fees and other similar fees, in each case, not generally shared with other Lenders), upfront fees, original issue discount (calculated based on a four (4) year life to maturity) and the LIBOR floor, if any, applicable to an Incremental Facility Loan shall not be greater than the highest margin that may, under any Lenders circumstances (other than in the Additional Lenders case of the Default Rate), be payable with respect to the Loans, upfront fees, original issue discount and LIBOR floor, (provided, that such differential between interest rate floors will be equated to the applicable all-in-yield for purposes of determining whether an increase to the interest rate under the initial Term Loan will be required, but only to the extent an increase in the interest rate floor in the initial Term Loan would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the initial Term Loan will be increased to the extent of such differential between interest rate floors if any, payable with respect to the Term Loans) plus 0.50% per annum, unless the interest rate with respect to the preexisting Loans is increased so as to be equal to the interest rate applicable to the applicable Incremental Facility AmendmentLoan minus 0.50% per annum. No Lender Upon the making of an Incremental Facility Loan, such Loans shall for all purposes be deemed to be Term Loans hereunder.
(f) Incremental Facility Loans shall be obligated requested by the Borrower pursuant to provide a request (which shall be in substantially the form of a Request for Advance) delivered in the same manner as a Request for Advance, but shall be funded pro rata only by those Lenders or Persons holding the related Incremental Facility Commitment, as applicable.
(g) Each of the Credit Parties and the Lenders shall execute and deliver such agreements, documents and instruments reasonably requested by Administrative Agent to effectuate all of the foregoing provisions of this Section 2.17; provided that, any opinion of counsel requested by the Administrative Agent in connection with an Incremental FacilityFacility Commitment may contain the qualification that no opinion is given with respect to the most favored nations provision set forth in clause (e) above.
(h) Notwithstanding anything to the contrary herein, unless it so agrees. Commitments in respect if the proceeds of any Incremental Facility shall become Commitments under this Agreement. An Loans will be used to consummate a Permitted Acquisition and the Borrower so elects and the Lenders providing such Incremental Facility Amendment mayLoan so agree, without (x) in clause (a)(B) above shall apply only at the consent of any other Lenders, effect such amendments to any Loan Documents time the as may be necessary or appropriate, in the opinion of the Administrative Agent, to date the definitive acquisition agreement (the “Subject Acquisition Agreement”) in respect thereof is executed (after giving effect the provisions of this Section (including to provide for voting provisions applicable on a Pro Forma Basis to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent Loan and the Additional LendersPermitted Acquisition or Investment as though they had occurred on such date), be subject to (y) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) condition that at the time any Incremental Facility Loans are made (and after giving effect thereto), no Default or Event of Default shall exist, shall be limited to a condition that no Event of Default under Section 8.1(b), (f) or (g) shall exist at such time; provided that no Default or Event of Default shall exist as of the date the Subject Acquisition Agreement is executed (after giving effect on a Pro Forma Basis to the incurrence of any Incremental Facility Loan and the use of proceeds thereof, each of Permitted Acquisition or Investment as though they had occurred on such date) and (z) the condition that the representations and warranties made by of the Borrower and each other Credit Party contained in Article 4 or any other Loan Party in or pursuant to the Loan Documents Document shall be true and correct in all material respects (or and in all respects if any such representation or warranty is already qualified by materiality) on and as of such date as if made on and as of such date, except to at the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event time that any tranche of an such Incremental Term Facility Advance is used to finance a Limited Conditionality Acquisition made (and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeafter giving effect thereto), the foregoing shall be limited to customary “specified representations” the accuracy of the representations and those warranties that would constitute Specified Representations and the representations included in the Subject Acquisition Agreement made by or with respect to the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition target, its subsidiaries and their respective businesses that are material to the interests of the Lenders and Lenders, but only to the extent that the Borrower or its applicable Subsidiary an Affiliate of the Borrower has the right to terminate its or their obligations (under the Subject Acquisition Agreement or to decline to consummate the acquisition) under such agreement Permitted Acquisition as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for representations in the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Acquisition Agreement.
Appears in 1 contract
Incremental Facility. (a) The Each Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving loan facilities and/or increased revolving commitments or letter of credit facilities or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing, (ii) the Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, (iii) in the case of an Incremental Revolving Facility, the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Company for which financial statements are available, determined using the amount of Loans expected to be borrowed under such Incremental Revolving Facility on the effective date thereof, shall be less than 2.75 to 1.0 and (iv) in the case of an Incremental Term Facility, the Consolidated Senior Secured Leverage Ratio, determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Company for which financial statements are available, determined as if any term loans under such Incremental Term Facility had been outstanding on the last day of such period, shall be less than 2.00 to 1.00. Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio 300,000,000 at any one time outstanding.
(determined (xi) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Any Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of ratably secured with the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00Loans, (ii) each any Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) not mature earlier than the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) Revolving Termination Date or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity (if applicable and other than for nominal amortization of 1% or less of the principal amount of such Incremental Facility per year) which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Revolving Facility, (provided that iii) the terms and conditions applicable to any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility (other than with respect to maturity, which shall have a final maturity no earlier than be governed by the Final Revolving Termination Date. The Applicable Margin preceding clause (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor ii)) shall be the same as those applicable to such Incremental Facility) relating to such Incremental the Revolving Facility shall be on other than such terms as are and conditions which do not apply or relate to any previously existing Facility or other terms reasonably satisfactory to the Administrative Agent, (iv)(A) the Borrower Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be the same as the Applicable Margin and Facility Fee relating to the Revolving Facility and (B) the Applicable Margin relating to any Incremental Term Facility shall be determined by the Company and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Company and the Persons willing to provide such Incremental Facility Amendment; Facility, provided that (i1) to the extent such terms and documentation are not consistent with the then existing Facilities (other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative Agent. At no time Agent (it being agreed Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums) and (2) in the case of Incremental Term Facilities, if the Applicable Margin (which term for purposes of this Section 2.19 shall there include any original issue discount (“OID”) or upfront fees (which shall be Revolving Commitments hereunder (including revolving commitments in respect deemed to constitute like amounts of OID) payable by the Borrowers to the lenders under, and pricing floors applicable to, any Incremental Revolving FacilityTerm Facility in the primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity)) relating to such Incremental Term Facility exceeds the Applicable Margin relating to any then existing Incremental Term Facility immediately prior to the effectiveness of the applicable Incremental Amendment, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the Applicable Margin relating to such existing Incremental Term Facility shall be made available hereunder upon delivery adjusted to equal the Administrative Agent Applicable Margin relating to such subsequent Incremental Term Facility minus 0.25% per annum. Each notice from the Company pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of notice thereof executed the relevant Incremental Facility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower Company (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and), if not already a Lender, provided that the Administrative Agent shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender’s or delayed) of the Administrative Agent, the Issuing Lender (to the extent Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.6 for an assignment of Loans to such Lender or Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowerapplicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Company, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.19. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations conditions set forth in Section 5.2 (it being understood that all references to the date of making of an Extension of Credit or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and warranties made such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Loan Party Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in or this Agreement shall not apply to the transactions effected pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term A Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan), the Borrower may from time request (but subject, in each case, to time amend the conditions set forth in clause (b) below) (x) the Revolving Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in order an aggregate principal amount not to provide to exceed the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eacheach such facility, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; and, together with any Incremental Revolving FacilityCommitment Increase, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities . No Lender shall not exceed $200,000,000, plus additional amounts be obligated to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such participate in an Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each . Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, (iiiif the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower shall incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be in pro forma compliance calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the financial covenants set forth balance incurred under the Fixed Incremental Amount. The Borrower may, in Section 7.1 after giving effect to the incurrence of such Incremental Facilityits sole discretion, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the of incurrence of any Incremental Facility, no Event or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of Default the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have occurred delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be continuing; provided that, in the event obligated to provide an Incremental Facility and that any tranche Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of an such requested Incremental Term Facility is used or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to finance a Limited Conditionality Acquisition participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible connection with the Term Loan proposed Incremental Facility;
(ii) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled each Lender agreeing to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and participate in any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such , the Borrower and the Administrative Agent have signed an Incremental Facility shall be on such terms as are reasonably satisfactory to Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders providing agreeing to such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section (including to provide for voting provisions applicable 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the Additional Lenders). The effectiveness contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility Amendment shallFacility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, unless otherwise each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Administrative Agent Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the Additional Lenderslenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, be subject if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to the satisfaction on the date thereof Section 8.1(a) or (each, an “Incremental Facility Closing Date”f) that at the time and has occurred or is continuing;
(iv) after giving pro forma effect to the incurrence of any such Incremental Facility and the use of proceeds thereof, each subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the representations end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and warranties made in the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period, and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any Loan Party newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Documents shall be true and correct in all material respects Facility providing for a separate tranche of Term Loans may provide for the ability to participate (or in all respects if qualified by materialityA) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and as (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of such date as if made on and as of such datethe Term Loans, except to the extent that such representations and warranties specifically refer to an earlier dateand, in which case they any case, (A) no Incremental Term Loan shall have a final maturity date earlier (but may be true and correct in all material respects later) than the Term A Loan Maturity Date (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche case of an Incremental Term Facility that is used to finance a Limited Conditionality Acquisition and to an incremental Term A Loan) or the extent Term B Loan Maturity Date (in the Additional Lenders participating in such tranche case of an Incremental Term Facility agree, that is an incremental Term B Loan) and (B) the foregoing amortization schedule of any Incremental Term Loan shall be limited not have a weighted average life to customary “specified representations” and those representations included maturity shorter than the remaining weighted average life to maturity of the then-existing Term A Loan (in the acquisition agreement case of an Incremental Term Facility that is an incremental Term A Loan) or other document having similar effect related to such Limited Conditionality Acquisition the then-existing Term B Loan (in the case of an Incremental Term Facility that are material to is an incremental Term B Loan); Term Loans made on the interests Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representationsCollateral. The proceeds of any No Incremental Facility will be used guaranteed by any Person other than a Guarantor hereunder and shall not be secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing (x) in the case of an Incremental Term Facility that is an incremental Term A Loan, the Term ATerm Loans (measured based on the all-in yield with respect to the then-existing Term A Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term A Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term A Loans minus 0.50% or (y) in the case of an Incremental Term Facility that is an incremental Term B Loan, the Term B Loans (measured based on the all-in yield with respect to the then-existing Term B Loans) unless the Applicable Margin with respect to the then-existing Term B Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term B Loans minus 0.50%; and
(x) the Borrower shall have paid all fees and expenses in connection with the exercise of the applicable Incremental Facility.
(c) Upon the effectiveness of any Incremental Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only for general corporate purposes (including, for after the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted PaymentsTerm Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) The Borrower may may, from time to time amend this Agreement in order to provide to request that the Borrower additional revolving loan facilities and/or increased revolving commitments in respect aggregate amount of the Revolving Facility or Commitments be increased by having an existing Lender agree in its sole discretion to increase its then existing Commitment (an “Increase Lender”) and/or by adding as a new Lender hereunder any other existing revolving facility hereunder Person (eacheach such Person, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving LoansAssuming Lender”) approved by the Administrative Agent and additional term loan facilities each Issuing Bank (in each case, such approval not to be unreasonably withheld or delayed) that shall agree to provide a Commitment hereunder (each, an each such proposed increase pursuant to the foregoing clauses (x) and (y) being a “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesCommitment Increase”), provided that in each case, by notice to the Administrative Agent specifying the amount of the relevant Commitment Increase, the Increase Lender(s) and/or Assuming Lender(s) providing such Commitment Increase and the date on which such Commitment Increase is to be effective (the “Increase Date”), which shall be a Business Day at least three Business Days after delivery of such notice; provided, however, that:
(i) the aggregate principal minimum amount of each Commitment Increase shall be $10,000,000 or a larger multiple of $5,000,000;
(ii) the aggregate amount of all Commitment Increases hereunder, together with the aggregate amount of all Incremental Facilities Equivalent Debt incurred under Section 2.18(d), shall not exceed $200,000,000exceed, plus additional amounts at the time of incurrence thereof, the sum of (the amount available under clauses (A) through (C) below, the “Available Incremental Amount”):
(A) an amount equal to the extent the Consolidated First Lien Net Leverage Ratio (determined greater of (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, $413,000,000 and (y) assuming such Incremental Facility is fully drawn as 100% of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of Consolidated Adjusted EBITDA for the most recently ended fiscal quarter Measurement Period for which financial statements have been delivered to delivered, plus
(B) the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000any permanent optional reductions of Commitments, plus
(iiiC) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 an unlimited amount such that, after giving effect to the incurrence of such Incremental Facilityamount (which shall be deemed to include the full amount of any Commitment Increase being implemented at such time assuming that the full amount of such Commitment Increase had been drawn), such compliance the Total Net Leverage Ratio would not exceed 2.5 to be determined (x) on 1.0 for the basis of the financial information most recently ended Measurement Period for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a5.01(a) or (b) as though and calculated on a Pro Forma Basis (but calculating the Total Net Leverage Ratio without netting the cash proceeds from such Loans, and without giving effect to any substantially simultaneous incurrence had been consummated as of Indebtedness made pursuant to clause (x) of this Section 2.18(a)(ii)); provided, that the Borrower may elect to use clause (zC) of the first day Available Incremental Amount prior to using clauses (xA) or (yB) of the fiscal period covered therebyAvailable Incremental Amount, and if both clause (yzC) assuming such and clauses (xA) or (yB) of the Available Incremental Facility is fully drawn as of such date and Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (z) disregarding of the proceeds of such Available Incremental Facility in calculating such leverage ratio Amount first;
(it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculationiii) and (iv) both at the time and after giving effect to the incurrence of any Incremental Facilitysuch request and upon the effectiveness of any Commitment Increase, no Default or Event of Default shall have occurred and be continuing; continuing or would result from such proposed Commitment Increase (provided that, in with respect to any Commitment Increase the event that any tranche primary purpose of an Incremental Term Facility which is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeCondition Transaction, the foregoing clause (ivrequirement pursuant to this Section 2.18(a)(iii) shall be tested that no Event of Default under clauses (a) or (b) of Article 7 or, solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in with respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative AgentBorrower, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that clauses (h) or (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a LenderArticle 7, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and exist after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of such Commitment Increase);
(iv) the representations and warranties made by any Loan Party set forth in or pursuant to Article 3 and in the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materialitywithout duplication of any materiality qualifier contained therein) on immediately prior to, and as of after giving effect to, such date Commitment Increase as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, except as of such specific date (provided that, with respect to any Commitment Increase the extent that primary purpose of which is to finance a Limited Condition Transaction, the only representations and warranties, the breach or inaccuracy of which shall be a condition to funding, shall be customary “Sungard” representations and warranties (with such representations and warranties specifically refer to be reasonably determined by the Lenders providing such Commitment Increase); and
(v) any Commitment Increase shall be on terms that are identical to the existing Commitments. Each notice by the Borrower under this paragraph shall be deemed to constitute a representation and warranty by the Borrower as to the matters specified in clause (iv) above. Notwithstanding anything herein to the contrary, no Lender shall have any obligation hereunder to become an earlier dateIncrease Lender and any election to do so shall be in the sole discretion of each Lender.
(b) Each Commitment Increase (and the increase of the Commitment of each Increase Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become effective as of the relevant Increase Date upon receipt by the Administrative Agent, on or prior to 12:00 noon, New York City time, on such Increase Date, of (i) a certificate of a Financial Officer stating that the conditions with respect to such Commitment Increase under this Section 2.18 have been satisfied, (ii) an agreement (a “Commitment Increase Supplement”), in which case they shall be true form and correct in all material respects (or in all respects if qualified by materiality) on substance reasonably satisfactory to the Borrower, each Increase Lender, each Assuming Lender and the Administrative Agent, pursuant to which, effective as of such earlier date; provided thatIncrease Date, as applicable, the Commitment of each such Increase Lender shall be increased or each such Assuming Lender shall undertake a Commitment, in each case duly executed by such Increase Lender or Assuming Lender, as the event that case may be, and the Borrower and acknowledged by the Administrative Agent and (iii) such certificates, legal opinions or other documents from the Borrower reasonably requested by the Administrative Agent in connection with such Commitment Increase. Upon the Administrative Agent’s receipt of a fully executed Commitment Increase Supplement from each Increase Lender and/or Assuming Lender referred to in clause (ii) above, together with the certificates, legal opinions and other documents referred to in clauses (i) and (iii) above, the Administrative Agent shall record the information contained in each such agreement in the Register and give prompt notice of the relevant Commitment Increase to the Borrower and the Lenders (including, if applicable, each Assuming Lender). At the election of the Administrative Agent in its sole discretion, any tranche of an Incremental Term Facility is used Loans outstanding on such Increase Date shall be reallocated among the Lenders (with Lenders making any required payments to finance a Limited Conditionality Acquisition and each other) to the extent necessary to keep the Additional outstanding Loans ratable with any revised pro rata shares of such Lenders participating arising from any nonratable increase in the Commitments under this Section 2.18. Upon each such tranche of an Incremental Term Facility agreeCommitment Increase, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the participation interests of the Lenders in the then outstanding Letters of Credit shall automatically be adjusted to reflect, and only each Lender (including, if applicable, each Assuming Lender) shall have a participation in each such Letter of Credit equal to, the Lenders’ respective Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit after giving effect to such increase.
(c) This Section shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
(d) The Borrower may utilize the Available Incremental Amount in respect of one or more series of senior unsecured notes or term loans, issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, in an aggregate amount not to exceed, together with the aggregate amount of all Commitment Increases, the Available Incremental Amount (“Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not have a final maturity date earlier than the latest then applicable Maturity Date (as determined as of the date of incurrence of such Incremental Equivalent Debt) and provides for payments of principal no earlier than such Maturity Date or does not provide for payments of principal in excess of 1.0% per annum, (ii) contains terms customary for similar issuances of Indebtedness at such time (as determined in good faith by the Borrower) (it being understood that, other than in the case of any issuance of a debt security, such terms shall be no more restrictive, taken as a whole (as determined in good faith by the Borrower) than this Agreement and in any event no such Indebtedness (including any debt securities) shall contain any more restrictive financial maintenance covenant), and (iii) to the extent that guaranteed, shall not be guaranteed by any Person other than the Loan Parties. To the extent the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, provides first lien security for the avoidance benefit of doubtall Lenders, Permitted Acquisitions the Borrower may utilize the Available Incremental Amount in respect of one or more series of senior secured first lien notes (secured on a pari passu basis with the Obligations) or senior secured junior lien term loans (secured on a junior lien basis to the Obligations), issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, so long as the conditions set forth in the previous sentence are satisfied and other Investments (i) such notes or term loans are not secured by any asset that does not also secure the Obligations hereunder on a pari passu basis with liens securing such notes or term loans, and Restricted Payments)(ii) such notes or term loans shall be subject to customary intercreditor arrangements reasonably satisfactory to the Borrower and the Administrative Agent.
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Incremental Facility. (a) The Subject to the terms of this Agreement and so long as no Default has occurred and is continuing, the Borrower may from time request, by written notice to time amend the Administrative Agent delivered not more than twice over the term of this Agreement Agreement, that a revolving credit and/or term loan facility (the "Incremental Facility") in order a specified principal amount which (when aggregated with the outstanding principal amount of Loans and unused amount of commitments under all other Incremental Facilities provided pursuant to provide this Section) shall not exceed $100,000,000 pursuant to which revolving loans and/or term loans will be made to the Borrower additional pursuant to this Agreement. Loans made pursuant to the Incremental Facility will (subject to clause (c)), be on terms and conditions satisfactory to the Required Lenders, with (x) revolving loan facilities and/or increased revolving commitments in respect of loans under the Incremental Facility being instituted as an increase to the then existing Revolving Facility or any other existing revolving facility hereunder Loan Commitment Amount (eachand having a maturity date the same as the Stated Maturity Date), an “Incremental Revolving Facility” and loans pursuant thereto “Incremental made thereunder being "Revolving Loans”" hereunder and otherwise treated pari passu (including as to repayments, prepayments, interest rate, commitment fees, mandatory commitment reductions, risk participations in Letters of Credit and collateral) pro rata with all other Revolving Loans and additional (y) term loan facilities hereunder (each, loans under the Incremental Facility being instituted as an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) increase to the aggregate outstanding principal amount of the Incremental Facilities shall not exceed $200,000,000Term Loans (and having a maturity date the same as the Stated Maturity Date), plus additional amounts and loans made thereunder being "Term Loans" hereunder and otherwise treated pari passu (as to repayments, prepayments, mandatory commitment reductions and collateral) pro rata with all other Term Loans, provided that the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect Weighted Average Life to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds Maturity of such Incremental Facility term loans shall in calculating no event be shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans.
(b) Upon receipt of such leverage ratio (it being understood that, if applicablerequest, the use Administrative Agent will promptly notify, and deliver a copy of such proceeds request and related materials to, each Lender (by telephone or otherwise). Within 15 Business Days after receipt by the Lenders of such request, each Lender interested in participating in the requested Incremental Facility shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to notify the Administrative Agent and the Borrower of its desire to participate and the maximum amount of its proposed Commitment with respect to such Incremental Facility (a "Commitment Notice"); provided, however, that each Lender may participate or not participate in the Incremental Facility in its sole discretion, and no Lender shall be deemed to have committed to participate in any Incremental Facility as a result of being a signatory to this Agreement prior to the effectiveness of the Incremental Facility, nor shall any Lender have any obligation to participate in any Incremental Facility unless and until it commits to do so as provided in this Section. Following receipt of such Commitment Notices, the Borrower (i) shall allocate the Incremental Facility, which allocations may be made, at the Borrower's option, in whole or in part to one or more of the Lenders pursuant or other lenders (such Lenders or other lenders, the "Supplemental Lenders") selected by the Borrower with, as to Section 6.1(a) or any Supplemental Lender which is not a Lender hereunder, the consent of the Administrative Agent and each Issuer (b) is less than 2.50:1.00such consent not to be unreasonably withheld), (ii) shall advise each Incremental Facility shall be in a minimum aggregate principal Lender of the amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance such Lender's commitment with the financial covenants set forth in Section 7.1 after giving effect respect to the incurrence of such Incremental Facility; provided, such compliance to be determined (x) on however, that the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all existing Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating a Commitment Notice with respect to such Incremental Facility shall be entitled to participate in the Incremental Facility on such the same terms as are reasonably satisfactory and conditions applicable to the Administrative AgentSupplemental Lenders with respect to such Incremental Facility (subject, however, to the allocations made by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that pursuant to clause (i) other than amortization above).
(with respect c) Each Lender hereby authorizes the Arranging Agents, without the requirement to obtain any Incremental Term Facilityfurther consents of the Lenders, the Issuers, the Managing Agents or the Co-Agents (but subject to the provisions of clauses (a) through (g) of Section 10.1), pricing to enter into any amendments or maturity date, each supplements (including an amendment and restatement of the Agreement) with the Borrower to this and any other Loan Document to the extent necessary to implement the foregoing and include the Incremental Facility hereunder. By way of example, and not in limitation, the following items and sections hereof would be revised in order to implement the Incremental Facility: (a) the definitions of the terms "Commitment", "Commitment Amount", "Commitment Termination Date", "Loans", "Note", "Percentage", "Revolving Loan Commitment Amount","Term Loan Commitment Amount" and "Termination Date"; (b) Sections 2.1.1, 2.1.3, 2.1.4, 2.2, 2.6.1, 3.1.1, and 3.1.2; and (c) Supplemental Lenders not otherwise Lenders hereunder shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortizationBorrower. In Prior to the case making of any Incremental Revolving Facility that increases the commitments Loans under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to Borrower will satisfy conditions and provide for voting provisions applicable to the Additional Lenders). The effectiveness Arranging Agents (with counterparts for each Lender) similar documents as those executed and provided on the Effective Date including satisfaction of any Incremental Facility Amendment shallconditions similar to those contained in Sections 5.1.1, unless otherwise agreed to 5.1.2, 5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.11, 5.1.13, 5.1.14, 5.1.15 and 5.2, and such others as reasonably requested by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Arranging Agents.
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Incremental Facility. (a) The Borrower may from From time to time amend this Agreement in order to provide upon at least 30 days’ prior written notice to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Revolving Facility or Lenders), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any other existing revolving facility hereunder (eachsuch increase referred to herein, as an “Energy Hedging Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesLoan”); provided that, provided that (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, no Default or Event of Default shall exist or would exist after giving effect thereto, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iii) the aggregate principal Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Incremental Facilities Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall not exceed $200,000,000execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, plus additional amounts (vi) Schedule 2.01 shall be amended to reflect the extent revised Commitments of the Consolidated First Lien Net Leverage Ratio Lenders and (determined vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (x) on a pro forma basis provided that any such prepayment shall be subject to Section 2.03), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the provision increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such Incremental Facilityincrease in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing Lenders; provided that each Energy Hedging Issuing Bank and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) assuming such Incremental Facility is fully drawn as the creation of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered a new Energy Hedging Commitment to the Administrative Agent and the Lenders pursuant to Section 6.1(a) one or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement more bank or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower institution (any such bank, financial institution, existing Lender other bank or other Person financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) and, if not already a Lender, shall must be approved by the Borrower and the Facility Agent (i) be subject to the consent (such approval not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6withheld) and each Energy Hedging Issuing Bank and (iiB) must become a Lender under this Agreement by execution and delivery of an Assignment and Assumption Agreement; provided further that, in no event or at any time shall any Borrower Affiliate or Macquarie Affiliate be a Lender for any Energy Hedging Incremental Loans (including by means of assignment or participation pursuant to an amendment Section 10.07).
(an “c) The Borrower shall use the proceeds of the Energy Hedging Incremental Facility Amendment”) to this Agreement and, as appropriate, Loans solely for the other Loan Documents, executed by purpose for which the Borrower, each Additional Lender and proceeds of the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as Energy Hedging Loans may be necessary or appropriate, used.
(d) Except as otherwise set forth in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any 2.11, all Energy Hedging Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, Loans shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time terms and after giving effect to the incurrence of conditions set forth herein including any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Applicable Margin.
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Incremental Facility. (a) The So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time and from time to time amend after the Restatement Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in order to provide to this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving FacilityCommitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and loans pursuant thereto “together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving FacilityCommitments, the “Incremental FacilitiesCommitments”), provided that that, (i) the aggregate principal amount of the Incremental Facilities Commitments permitted pursuant to this subsection 2.5 shall not exceed $200,000,000exceed, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facility, no Event of Default shall have occurred Facilities Amount” and be continuing; provided that, in the event that (ii) if any tranche portion of an Incremental Term Facility Commitment is used to finance a Limited Conditionality Acquisition and to be incurred in reliance on clause (i) of the extent the Additional Lenders participating in such tranche definition of an “Maximum Incremental Term Facility agreeFacilities Amount”, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility Borrower shall have delivered a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory certificate to the Administrative Agent, certifying compliance with the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as financial test set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortizationclause. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments Any loans made in respect of any such Incremental Revolving Facility, Extended Revolving Commitment (other than Supplemental Term Loan Commitments and any original Supplemental Revolving Commitments) that have more than four different maturity datesshall be made by creating a new Tranche.
(ab) An Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall Commitments. The Incremental Commitments (or any portion thereof) may be made available by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder upon delivery to or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the Issuing provisions of this subsection 2.5. Upon effectiveness of the Lender (to Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the extent such consent would be required with respect to an assignment term loan made pursuant to such Additional Lender Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to Section 10.6such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and (iiSupplemental Revolving Commitments) shall become a Lender commitments under this Agreement pursuant to an amendment (an “Incremental Facility Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, Borrower and each Additional Lender and the Administrative Agent. No applicable Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this AgreementLender. An Incremental Facility Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this Section subsection 2.5 and/or (including y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for voting provisions applicable (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the Additional Lendersextent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans pursuant to subsection 3.4(c). The effectiveness of any , on more than a ratable basis with the Initial Term Loans, Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof B-2019 Term Loans or Incremental B-2021 Term Loans (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the incurrence of any Incremental Facility maturity date and the use weighted average life to maturity of proceeds thereofsuch Incremental Term Loan Commitments shall be no earlier than or shorter than, each as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects Initial Term Loans, as applicable (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to other than an earlier datematurity date and/or shorter weighted average life to maturity for customary bridge financings, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided thatwhich, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited subject to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that conditions (as determined by the Borrower in good faith), would either be automatically converted into or its applicable Subsidiary has the right required to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only exchanged for general corporate purposes (including, permanent financing which does not provide for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).an earlier maturity
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.002.25:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Permitted Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Permitted Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(ab) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Permitted Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Permitted Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such acquisition agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) The Borrower may from time to time amend after the Effective Date request one or more increases in the Revolving Credit Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement in order shall be construed to obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of their Affiliates and Approved Funds) may, in its sole discretion, commit to participate in such Revolving Credit Commitment Increases by forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent and the Borrower additional revolving loan facilities and/or increased revolving shall allocate the commitment under such Revolving Credit Commitment Increase among the Lenders and other Eligible Assignees from which the Administrative Agent has received written commitments in with respect of thereto. Each Revolving Credit Commitment Increase shall become effective on a date agreed by the Revolving Facility or any other existing revolving facility hereunder Borrower and the Administrative Agent (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesCredit Extension Date”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount any case on or after the date of $25,000,000, (iii) satisfaction of the Borrower shall be in pro forma compliance with the financial covenants conditions precedent set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined 3.5 (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) The Each Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans or an increase in the amount of the Term Loan Facility (each an “Incremental Term Facility”) or one or more additional revolving loan facilities and/or increased revolving commitments or letter of credit facilities or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing, (ii) the Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined greater of (x) $750,000,000 and (y) such higher amount if, after giving effect thereto (including funding thereof in the case of an Incremental Term Facility and the funding of loans expected to be borrowed on the effective date thereof in the case of an Incremental Revolving Facility), the Consolidated Leverage Ratio determined on a pro forma basis after giving effect would be less than 1.50 to 1.00. Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 unless approved by the Administrative Agent (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence). Any negative or financial covenants applicable to an Incremental Facility that are more restrictive than those contained in this Agreement shall be deemed to be incorporated in this Agreement, mutatis mutandis, except (x) in the case of an Incremental Revolving Facility, to the provision extent they do not by their nature apply or relate to any then-existing Facility or apply only to periods after the commitment termination date of such the Revolving Facility or any other revolving Facility and (y) in the case of an Incremental Term Facility, to the extent they do not by their nature apply or relate to any then-existing Facility or apply only to periods after the Latest Maturity Date. Any Incremental Facility shall be ratably secured with the Obligations.
(i) Any Incremental Revolving Facility shall not mature earlier than the commitment termination date of the Revolving Facility or any other revolving Facility nor have a weighted average life which is shorter than the then remaining weighted average life of the Revolving Facility, (yii) assuming such the terms and conditions applicable to any Incremental Revolving Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood thatother than with respect to maturity, if applicable, the use of such proceeds which shall be given pro forma effect in such calculationgoverned by the preceding clause (i)) shall be the same as those applicable to the Revolving Facility other than interest rate margins and commitment/facility fees, such terms and conditions which do not apply or relate to any then-existing Facility, terms that are only applicable to periods after the commitment termination date of the last day of the most recently ended fiscal quarter for which financial statements have been delivered Revolving Facility or any other revolving Facility or other terms reasonably satisfactory to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower Applicable Margin and commitment/facility fees relating to any Incremental Revolving Facility shall be in pro forma compliance with as agreed by the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent Company and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming providing such Incremental Facility is fully drawn as of such date and Revolving Facility.
(zi) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Any Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to shall not mature earlier than the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must Latest Maturity Date nor have a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans, (provided that ii) the terms and conditions applicable to any Incremental Term Facility may amortize in an amount such that it is fungible (other than with respect to the maturity, which shall be governed by the preceding clause (i) and as set forth below) shall be the same as those applicable to the Term Loan FacilityLoans other than (w) the interest rate margins (subject to clause (iii) below) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable or upfront fees (if any), interest rate floors (if any), and amortization schedule (subject to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that clause (i) other than amortization above) applicable to the Incremental Term Facilities, (with respect x) terms that are only applicable to periods after the Latest Maturity Date, (y) terms and conditions which do not apply to any Incremental Term Facility), pricing or maturity date, each Incremental then-existing Facility shall have the same and (z) other terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and (iii) the Borrower interest rate margins and original issue discount or upfront fees and interest rate floors shall be determined by the Company and the Lenders of the Incremental Term Facility, provided that in the event that the yield on any Incremental Term Facility (taking into account interest rate margins, upfront fees and original issue discount on such term loans, with upfront fees and original issue discount equated to interest rate margins based on an assumed four year life to maturity, but excluding upfront fees, ticking fees, arranging fees and any other fees not paid to the market generally) (the “Incremental Yield”) exceeds the yield on the Term Loan Facility by more than 0.50%, in each case as determined by the Administrative Agent, then the interest rate margins for the Term Loans shall automatically be increased to a level, or fees shall be paid to the Term Lenders, such that the yield on the Term Loans shall be 0.50% below the Incremental Yield; provided that if such Incremental Term Facility includes a minimum Eurocurrency Rate and such minimum Eurocurrency Rate is greater than the Eurocurrency Rate in effect for a three-month interest period at such time, such increased amount (above the greater of such minimum Eurocurrency Rate and such Eurocurrency Rate) shall be equated to interest rate for purposes of determining the Incremental Yield; provided, further, that if such Incremental Term Facility includes a minimum ABR and such minimum ABR is greater than the ABR in effect at such time, such increased amount (above the greater of such minimum ABR and such ABR) shall be equated to interest rate for purposes of determining the Incremental Yield.
(d) Subject to the other provisions of this Section 2.19, any Incremental Facility shall otherwise be on terms and pursuant to documentation to be determined by the Company and the Persons willing to provide such Incremental Facility, provided that to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity and except as permitted by the preceding paragraphs (b) and (iic)) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Company pursuant to this Section 2.19 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. Each Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower Company (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and), if not already a Lender, provided that the Administrative Agent shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender’s or delayed) of the Administrative Agent, the Issuing Lender (to the extent Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.6 for an assignment of Loans to such Lender or Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowerapplicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Company, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.19. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations conditions set forth in Section 5.2 (it being understood that all references to the date of making of an Extension of Credit or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and warranties made such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Loan Party Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in or this Agreement shall not apply to the transactions effected pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) The Borrower may at any time and from time to time amend this Agreement in order to provide after the Fifth Amendment Effective Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Facility or any other existing revolving facility hereunder Lenders), request the addition of (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facilitycollectively, the “Incremental Facilities”), ) a new tranche of term loans (an “Incremental Term Facility”) or an increase in the Revolving Commitments (“Incremental Revolving Commitments”) or a combination thereof; provided that (i) at the aggregate principal amount time of any such request and upon the effectiveness of the Incremental Facilities Facility Amendment referred to below, no Default or Event of Default shall not exceed $200,000,000exist, plus additional amounts to (ii) the extent the Consolidated First Lien Net Leverage Ratio (Borrower shall be in compliance with Sections 6.13, 6.14 and 6.16 determined (x) on a pro forma basis both before and after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn (as of such date and (z) disregarding the proceeds of if such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of had been outstanding on the last day of the most recently ended recent fiscal quarter for which financial statements have been delivered testing compliance therewith), (iii) 100% of the Net Proceeds received in respect of any Incremental Term Facility shall be used to prepay, repurchase or redeem the Senior Notes and (iv) all fees and expenses owing to the Administrative Agent and the Lenders pursuant in respect of such Incremental Facility shall have been paid (provided that the Administrative Agent will consult with the Borrower before agreeing to Section 6.1(aany commitment or upfront fees with the banks or other financial institutions providing such Incremental Facility). The Incremental Facilities shall be in an aggregate principal amount not exceeding (in the aggregate) or (b) is less than 2.50:1.00$200,000,000, (ii) each Incremental Term Facility shall be in a minimum an aggregate principal amount not less than $50,000,000, and each of $25,000,000, (iii) the Borrower Incremental Revolving Commitments shall be in pro forma compliance an aggregate principal amount not less than $10,000,000. Each Incremental Facility (a) shall rank pari passu in right of payment and of security with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent Revolving Loans and the Lenders pursuant to Section 6.1(a) or Term Loans, (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche case of an Incremental Term Facility is used Facility, shall not mature earlier than the Term Loan Maturity Date (but may, subject to finance a Limited Conditionality Acquisition clause (c) below, have amortization and commitment reductions prior to such date), (c) in the extent the Additional Lenders participating in such tranche case of an Incremental Term Facility agreeFacility, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which that is the same or longer not less than the then remaining weighted average life to maturity that of the Term Facility Loans, and (d) in the case of an Incremental Term Facility, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans; provided that (x) the terms and conditions applicable to any Incremental Facility maturing after the Term Loan Maturity Date or, if the Term Loans have been paid in full as of the date of the issuance or incurrence of any such Incremental Facility, maturing after the Revolving Maturity Date, may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan Maturity Date or Revolving Maturity Date, as the case may be, and (y) the Incremental Term Facility may amortize in an amount such that it is fungible with be priced differently than the Term Loan Facility) Loans. Any such notice shall set forth the requested amount and a final maturity no earlier than terms of the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such relevant Incremental Facility. The terms Borrower may arrange for one or more banks or other financial institutions, each of the applicable Incremental Facility which shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no and, with respect only to Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunderCommitments, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower Issuing Bank (any such bank, financial institution, existing Lender bank or other Person financial institution being called an “Additional Lender”) and), if to extend commitments under the Incremental Facility, and each existing Lender shall be afforded an opportunity, but shall not already be required, to provide a Lenderportion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such and each Additional Lender pursuant to Section 10.6) and (ii) shall become a Lender under this Agreement Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be to the extent (but only to the extent) necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)Section. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party conditions set forth in or pursuant Section 4.02 (it being understood that all references to “the date of such Borrowing” in such Section 4.02 shall be deemed to refer to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as effective date of such date Incremental Facility Amendment). Except as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeotherwise expressly set forth above, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests proceeds of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility Facilities will be used only for working capital and other general corporate purposes (includingpurposes, including consideration for Permitted Acquisitions. Notwithstanding anything contained herein to the avoidance contrary, from and after the Fifth Amendment Effective Date, no Incremental Revolving Commitments may be issued or funded hereunder and the foregoing provisions of doubt, Permitted Acquisitions this Section 2.19 as it relates to the issuance or funding of Incremental Revolving Commitments shall be of no further force and other Investments and Restricted Payments)effect.
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Incremental Facility. (a) The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time from time to time amend during the Commitment Period and after the Second Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect form of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and term loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Term LoansRevolver”; together with any each Incremental Revolving FacilityTerm Loan and Incremental Revolver, the an “Incremental FacilitiesFacility”), provided that ) by an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility: (ia) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming loans made under any such Incremental Facility is fully drawn as of (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) (1) any such date Additional Loans (A) made pursuant to an Incremental Revolver shall (I) have the same terms (including interest rate, voting rights and (z) disregarding rights to receive the proceeds of such Incremental Facility in calculating such leverage ratio prepayments) as the existing Revolving Loans, (it being understood that, if applicable, the use of such proceeds II) shall be given pro forma effect in such calculation)considered Revolving Loans hereunder and (III) as shall mature on the Extended Maturity Date and (B) made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of the last day of the most recently ended fiscal quarter for which financial statements have been delivered prepayments and amortization) to be agreed upon by the Administrative Agent and the Lenders pursuant to Section 6.1(aBorrower at the time of such Incremental Term Loan and (2) or (b) is less than 2.50:1.00the additional Revolving Commitments comprising the Incremental Revolver shall be Extended Revolving Commitments, (iic) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,00050,000,000 and integral multiples of $10,000,000 in excess thereof, (iiid) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (f) before any Additional Loans are made, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (g) no Default or Event of Default shall then exist or would exist after giving effect to any such Incremental Facility, (h) the Administrative Agent shall have received from the Borrower a satisfactory legal opinion of counsel to the Borrower and such other documentation as it deems reasonably necessary to effectuate each such Incremental Facility and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to the Administrative Agent, demonstrating that, (A) after giving effect to any such Incremental Facility on a pro forma basis, the Credit Parties will be in pro forma compliance with the financial covenants set forth in Section 7.1 5.9 and (B) if the full amount of the Revolving Committed Amount (after giving effect to the incurrence of such Incremental Facility) were drawn by the Borrower, such the Credit Parties would be in compliance to with all financial and other covenants (including covenants restricting indebtedness and liens) under the Subordinated Note Documents and the documents for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). Each Incremental Facility shall be determined (x) on the basis of the obtained from existing Lenders or from other banks, financial information most recently delivered institutions or investment funds reasonably acceptable to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility AmendmentBorrower; provided that (i) such other than amortization (with respect banks, financial institutions and investment funds shall enter into such joinder or other agreements to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms give effect thereto as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility amendment to this Credit Agreement or any other existing revolving credit facility hereunder, Credit Document as may be necessary to incorporate the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect terms of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)therein.
Appears in 1 contract
Sources: Credit Agreement (Belden Inc.)
Incremental Facility. (a) The Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly notify the Lenders), at any time after the Closing Date, the Borrower may from time to time amend this Agreement request (i) additional commitments under the Term Facility (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Term Commitments”) and/or (ii) increases in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect aggregate amount of the Revolving Facility or any other existing revolving facility hereunder Commitments (eacheach such increase, an “Incremental Revolving FacilityCommitment” and loans pursuant thereto and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that (x) both before and after giving effect to any such addition(s), the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 after the Closing Date (excluding, for the avoidance of doubt, each Term Loan A-2 added on the Closing Date) shall not exceed $400,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and (z) there shall be not more than three (3) such increases after the Closing Date.
(a) Any Loans made in respect of any Incremental Revolving Loans”Commitments shall be made by increasing the Total Revolving Commitment with the same terms (including pricing) and additional term loan facilities hereunder as the existing Revolving Loans (each, an a “Revolving Commitment Increase”). Any Loans made in respect of any Incremental Term Facility” and loans pursuant thereto Commitments (the “Incremental Term Loans”; together with any Incremental Revolving Facility) may be made, at the “Incremental Facilities”)option of the Borrower, provided that by either (i) issuing a commitment to make term loans with the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio same terms (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)including pricing) as an existing Series of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) Term Loans, or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in creating a minimum aggregate principal amount new Series of $25,000,000, terms loans (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an “Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Loan Tranche”). Any Revolving Commitment Increases or Incremental Term Facility agree, the foregoing clause Loans (ivA) shall be tested solely at not have a final maturity earlier than the time of the execution of the acquisition agreement Revolving Facility Final Maturity Date or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental LEGAL02/38433738v11 Term Facility must have Final Maturity Date or a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of Term Loans A-2, as the case may be, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Facility Loans and (provided that any Incremental Term Facility may amortize in an amount C) shall have such that it is fungible other terms and provisions, to the extent not consistent with the Revolving Loans or the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis Loans, as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms case may be, as are reasonably satisfactory to the Administrative Agent, Joint Lead Arrangers.
(b) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and the Lenders providing such Incremental Facility. The proposed terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Commitments. Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and Loans (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any portion thereof) may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender institution or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower investing entity (any such bank, financial institution, existing Lender institution or other Person being called investing entity, an “Additional Incremental Lender”) ), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent (and, if not already in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender, ) shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender's or delayed) of Incremental Lender's, as the Administrative Agentcase may be, the Issuing Lender (to the extent making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required with respect to under Section 12.4 for an assignment of Loans or Revolving Commitments, as applicable, to such Additional Lender pursuant or Incremental Lender, as the case may be. No Lender shall be obligated to Section 10.6provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender's Revolving Commitment) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (including in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to provide for voting provisions applicable respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Additional Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The effectiveness Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) If any Incremental Facility Amendment shallCommitments are added in accordance with this Section 2.14, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to Borrower shall determine the satisfaction on effective date (the date thereof (each, an “Incremental Facility Closing Commitments Effective Date”) and the final allocation of such addition; provided, that at any existing Lender electing to participate in the time proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of LEGAL02/38433738v11 the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereofsuch increase, each of (A) the representations and warranties made by any Loan Party contained in or pursuant to Section 7 and the Loan other Credit Documents shall be are true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such datethe Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be have been true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the event that any tranche case of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of Commitment, shall make an Incremental Term Facility agreeLoan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be different).
(d) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Revolving Commitment Increase (each an “Incremental Revolving Lender”), and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's risk participation hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of such risk participations, the foregoing percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be limited accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition any transaction that are material may be effected pursuant to the interests of the Lenders and only immediately preceding sentence.
(e) This Section 2.14 shall supersede any provisions in Section 12.12 to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representationscontrary. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).LEGAL02/38433738v11
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis, treating all Deferred Consideration required to be paid other than in common equity interests then outstanding as Consolidated Total Debt solely for testing pro forma compliance with the covenants contained in Article VI, as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under the Facility and such Incremental Facility had been outstanding (without netting the cash proceeds thereof) and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the conditions in clause (i) and (ii) shall be subject to Section 1.7 and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) the Fixed Incremental Amount minus any amounts incurred prior to such time under the Fixed Incremental Amount pursuant to Section 7.1(k) or Section 7.1(r) plus (y) an additional amount so long as, after giving pro forma effect to the incurrence of such Indebtedness, the First Lien Leverage Ratio does not exceed 4.00:1.00 calculated on a pro forma basis after giving effect to for the provision period of such Incremental Facilityfour consecutive fiscal quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (y) assuming such Incremental Facility is assuming, in the case of each revolving facility, that the commitments are fully drawn as and without netting the proceeds of any such date and (z) disregarding Indebtedness to be incurred at the time of testing such pro forma compliance); provided, that, if the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood thatwill be applied to finance a Limited Condition Acquisition, if applicable, compliance with the use of such proceeds First Lien Leverage Ratio shall be given pro forma effect determined in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to accordance with Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each 1.7. Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility in the form of $25,000,000“Term A” loans (which includes that such Incremental Term Facility must be syndicated to commercial banks), shall not mature earlier than the Maturity Date (or, in the case of any Incremental Term Facility in the form of “Term B” loans, 91 days subsequent to the Maturity Date) nor have amortization of greater than 5% of the original principal amount of such Incremental Term Facility per year (except (x) with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k) and (y) for any periods after the Maturity Date); (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility amortization and maturity) they shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are be reasonably satisfactory to the Administrative Agent and if more favorable to the Borrower and (ii) no Lender under such Incremental Revolving Facility Facilities, shall have any amortization. In be added for the case benefit of any Incremental Revolving Facility that increases the commitments Lenders under the Revolving Facility or any then existing Facilities other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments than in respect of terms applicable only to periods after the Maturity Date (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums without a corresponding change to any Incremental Revolving Facility, Extended Revolving Commitments then existing Facilities). Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and any original Revolving Commitments) that have more than four different maturity dates.
(a) An proposed terms of the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and); provided that the Administrative Agent, if not already a the Swingline Lender, and the Issuing Banks shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, the Issuing Lender (to the extent such Additional Lender’s providing such Incremental Facility if such #96545445v8 consent would be required with respect to under Section 10.4 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.2(b) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.23. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that at all references to the time date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Term Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to the incurrence of any Incremental Facility Revolving Facility, each Lender’s and the use each Additional Lender’s, if any, Pro Rata Share of proceeds thereof, each of the representations Revolving Commitments and warranties made by any Loan Party the Revolving Loans shall equal such Lender’s and such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments after giving effect to such Incremental Revolving Facility; provided further, that in or pursuant to furtherance of the Loan Documents foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be true deemed to have irrevocably sold, transferred, conveyed and correct in all material respects assigned to each other Lender and each other Additional Lender, if any (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingwithout, for the avoidance of doubt, Permitted Acquisitions increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and other Investments Revolving Loans such that, after giving effect to such assignment, each Lender and Restricted Payments)each Additional Lender, if any, shall hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio Available Incremental Amount (as determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day date of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each incurrence of any applicable Incremental Facility). Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility shall not mature earlier than the Maturity Date nor have amortization of $25,000,000greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Borrower pursuant to this Section 2.23 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and); provided that the Administrative Agent, if not already a the Swingline Lender, and the Issuing Bank shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, the Issuing Lender (to the extent such Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.4 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.2(b) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.23. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that at all references to the time date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to the incurrence of any Incremental Facility Revolving Facility, each Lender’s and the use each Additional Lender’s, if any, Pro Rata Share of proceeds thereof, each of the representations Revolving Commitments and warranties made by any Loan Party the Revolving Loans shall equal such Lender’s and such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments after giving effect to such Incremental Revolving Facility; provided further, that in or pursuant to furtherance of the Loan Documents foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be true deemed to have irrevocably sold, transferred, conveyed and correct in all material respects assigned to each other Lender and each other Additional Lender, if any (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingwithout, for the avoidance of doubt, Permitted Acquisitions increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and other Investments Revolving Loans such that, after giving effect to such assignment, each Lender and Restricted Payments)each Additional Lender, if any, shall hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide during the Incremental Facility Availability Period, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Facility Agent (whereupon the Facility Agent shall promptly deliver a copy to each of the Revolving Facility Lenders), request that one or any other existing revolving facility hereunder more additional tranches of Capital Expenditure Loans (each, an the “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, be made available to the “Incremental Facilities”), provided that Borrower. At the time of (i) any such request and upon the effectiveness of any Incremental Amendment referred to below (x) no Default or Event of Default shall exist or would exist after giving effect thereto, (y) a Lock-Up Event shall not have occurred and be continuing and (z) Group FFO Leverage Ratio shall not be less than 8.50% and (ii) the initial request for a Borrowing of Incremental Loans, all Capital Expenditure Commitments (which, for avoidance of doubt, shall not refer to commitments for Incremental Loans) shall have been fully borrowed.
(b) Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided, that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities Loans shall not exceed the sum of $200,000,000, plus additional amounts to 750,000,000.
(c) The Incremental Loans (i) shall rank pari passu in right of payment and of security with the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00Loans, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000not mature earlier than one year after the Final Maturity Date, (iii) shall not be materially more restrictive, taken as a whole, to the Borrower shall be in pro forma compliance (including with respect to mandatory and voluntary prepayments) than the financial covenants set forth in Section 7.1 after giving effect to the incurrence terms of such Incremental Facility, such compliance to be determined (x) on the basis this Agreement; provided that a certificate of an Authorized Officer of the financial information most recently Borrower is delivered to the Administrative Facility Agent and at least five (5) Business Days (or such shorter period as the Lenders pursuant to Section 6.1(aFacility Agent may reasonably agree) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect prior to the incurrence effectiveness of any Incremental FacilityAmendment, no Event together with a reasonably detailed description of Default shall have occurred the material terms and be continuing; provided thatconditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in the event good faith that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition such terms and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, conditions satisfy the foregoing clause requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Facility Agent notifies the Borrower within such period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is not shorter than that of the same or longer than the then remaining weighted average life to maturity of the Term Facility Capital Expenditure Loans and (provided that any Incremental Term Facility may amortize in an amount such that it is fungible v) shall otherwise be on terms and conditions to the extent not consistent with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are Facilities, reasonably satisfactory to the Administrative AgentMajority Lenders. If the Applicable Margin with respect to the Incremental Loans exceeds the Applicable Margin then in effect for the Loans, by more than 25 basis points (the amount of such excess above the Applicable Margin being referred to herein as the “Margin Differential”), then the Applicable Margin for the Loans shall automatically be increased by the Margin Differential, effective upon the making of the Incremental Loans.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and the Lenders providing such Incremental Facility. The proposed terms of the applicable relevant Incremental Facility shall Loans. Incremental Loans may be as set forth in the applicable Incremental Facility Amendment; provided that made by any existing Lender (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, and each Incremental Facility shall existing Lender will have the same terms as the Term Facility or the Revolving Facilityright, as applicablebut not an obligation, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case make a portion of any Incremental Revolving Facility that increases the commitments under the Revolving Facility Loan on terms permitted in this Section 2.11) or by any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender bank or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower financial institution (any such bank, financial institution, existing Lender other bank or other Person financial institution being called an “Additional Lender”) and, if not already ); provided that in no event or at any time shall any Borrower Affiliate or Macquarie Affiliate be a Lender, shall Lender for any Incremental Loans (i) be subject to the consent (not to be unreasonably withheld including by means of assignment or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender participation pursuant to Section 10.6) and (ii) 10.07). Commitments in respect of Incremental Loans shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Financing Documents, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative Facility Agent. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan this Agreement and the other Financing Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentFacility Agent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)Section. The effectiveness of (and, in the case of any Incremental Facility Amendment, the borrowing under) any Incremental Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Financial Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party conditions set forth in or pursuant Section 4.03 (it being understood that all references to the Loan Documents Financial Closing Date or “the date of such Loan” or similar language in such Section 4.03 shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as deemed to refer to the effective date of such date Incremental Amendment) and such other conditions as if made on and as the parties thereto shall agree. The Borrower shall use the proceeds of such date, except the Incremental Loans solely for the purpose for which the proceeds of Capital Expenditure Loans may be used. No Lender shall be obligated to provide any Commitment with respect to any Incremental Loans unless it so agrees.
(e) This Section 2.11 shall supersede any provisions in Section 10.01 to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)contrary.
Appears in 1 contract
Incremental Facility. (a) The Each Borrower may at any time or from time to time amend this Agreement in order to provide after the Closing Date, by notice to the Borrower additional Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving loan facilities and/or increased revolving commitments or letter of credit facilities or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing, (ii) the Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined greater of (x) $500,000,000 and (y) such higher amount if, after giving effect thereto (including funding thereof in the case of an Incremental Term Facility and the funding of loans expected to be borrowed on the effective date thereof in the case of an Incremental Revolving Facility), the Consolidated Leverage Ratio determined on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall would be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each 1.50 to 1.00. Each Incremental Facility shall be in a minimum an aggregate principal amount of that is not less than $25,000,000, 50,000,000 (iii) provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the Borrower shall be in pro forma compliance with the financial covenants limit set forth in Section 7.1 after giving effect to the incurrence of such next sentence).
(i) Any Incremental Facility, such compliance to Facility shall be determined (x) on ratably secured with the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered therebyLoans, (yii) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and not mature earlier than the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must Revolving Termination Date nor have a weighted average life to maturity (if applicable and other than for nominal amortization of 1% or less of the principal amount of such Incremental Facility per year) which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Revolving Facility, (provided that iii) the terms and conditions applicable to any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility (other than with respect to maturity, which shall have a final maturity no earlier than be governed by the Final Revolving Termination Date. The Applicable Margin preceding clause (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor ii)) shall be the same as those applicable to such Incremental Facility) relating to such Incremental the Revolving Facility shall be on other than such terms as are and conditions which do not apply or relate to any previously existing Facility or other terms reasonably satisfactory to the Administrative Agent, (iv)(A) the Borrower Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be the same as the Applicable Margin and Facility Fee relating to the Revolving Facility and (B) the Applicable Margin relating to any Incremental Term Facility shall be determined by the Company and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Company and the Persons willing to provide such Incremental Facility Amendment; Facility, provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Company pursuant to this Section 2.19 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower Company (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and), if not already a Lender, provided that the Administrative Agent shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender’s or delayed) of the Administrative Agent, the Issuing Lender (to the extent Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.6 for an assignment of Loans to such Lender or Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowerapplicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Company, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.19. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations conditions set forth in Section 5.2 (it being understood that all references to the date of making of an Extension of Credit or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and warranties made such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Loan Party Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in or this Agreement shall not apply to the transactions effected pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) The Borrower may from time to time amend this Agreement in order to provide by written notice to the Borrower additional revolving Agent elect to request the establishment of an incremental loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder commitment (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesLoan Commitment”) in an aggregate principal amount of up to $50,000,000. Such notice shall specify the date (the “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Agent (or such shorter time as the Agent may agree to in its sole discretion). The Incremental Loan Commitments shall become effective as of the Increased Amount Date to the extent the Lenders or one or more additional Persons, in their sole discretion, have agreed to provide the Incremental Loan Commitments (and such Lenders or additional Persons so providing the Incremental Loan Commitments, together with the Agent and the Borrower, shall enter into in amendment to this Agreement to establish such Incremental Loan Commitments); provided that (i) no Default or Event of Default shall exist on the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis date such request is made through and including such Increased Amount Date before or after giving effect to the provision of such Incremental Facility, Loan Commitments; (yii) assuming such Incremental Facility is fully drawn as of such date and (zthe conditions set forth in Section 4.02(b) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given satisfied on the date such request is made and on such Increased Amount Date immediately after giving effect to the Incremental Loan Commitments; (iii) no Borrowing Base Deficiency exists or would result therefrom; (iv) the Parent and the Borrower shall be in pro forma effect compliance with each of the covenants set forth in such calculation)) Section 6.18 as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00calendar month, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined Loan Commitments; (xv) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default Loans shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity date no earlier than the Final Maturity Date. ; (vi) the Incremental Facilities will Loans shall rank equal in right of payment with the existing Loans, shall be entitled to prepayments and voting rights on secured by the same basis property as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility Collateral and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have Guaranteed by the same terms Persons as the Term Facility or Loans; (vii) the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) interest rates and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed unless otherwise agreed by the Borrower, each Additional Lender the Agent and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to lenders providing such Incremental Facility Amendment. No Lender Loan Commitment, fees and premiums shall be obligated the same as the existing Loans; (viii) the Borrower shall deliver or cause to provide be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction; and (ix) the Agent shall have consented to the establishment of such Incremental FacilityLoan Commitment and/or the making of such Incremental Loans, unless it so agrees. such consent may be withheld in the Agent’s sole and absolute discretion.
(b) The terms and provisions of the Incremental Loans and the Incremental Loan Commitments shall be, except as otherwise set forth herein or in the relevant amendment, identical to the existing Loans (including in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent mechanics of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in requesting Loans thereunder and the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shallinterest rates and, unless otherwise agreed to by the Administrative Borrower, the Agent and the Additional Lenderslenders providing such Incremental Loan Commitment, be subject fees and prepayment premiums in respect thereof).
(c) Notwithstanding anything to the satisfaction on the date thereof (eachcontrary contained in this Agreement or any other Loan Document, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each this Section 2.15 does not constitute a commitment or agreement of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeAgent, the foregoing shall be limited Lenders or any of their affiliates to customary “specified representations” and those representations included in provide the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Loan Commitments.
Appears in 1 contract
Sources: Credit Agreement (eHealth, Inc.)
Incremental Facility. (a) The Borrower Company may from time to time amend this Agreement in order to provide to the Borrower Company additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Loan Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Loan Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date 400,000,000 and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall 50,000,000. Each Incremental Facility will be in pro forma compliance secured and guaranteed with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Revolving Credit Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documentsbasis. Each Incremental Term Facility must have a weighted final maturity on or after the Revolving Credit Termination Date and an average life to maturity (if an Incremental Term Facility) which is at least as long as the same or longer than the then remaining weighted average life to maturity term of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Revolving Credit Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Revolving Credit Facility unless the applicable Incremental Facility Amendment Activation Notice specifies a lesser treatment. Each An Incremental Revolving Facility shall have may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof, no Default or Event of Default exists and the Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a final maturity no earlier than pro forma basis, as reasonably determined by the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable Company after consultation with the Administrative Agent, to all Lenders providing give effect to the Loans to be made pursuant to such Incremental Facility and any Eurodollar or ABR floor applicable to such the Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of Incremental Facility) relating to such Incremental Facility shall Facilities may be on such terms as are reasonably satisfactory to used only for the Administrative Agent, the Borrower purposes specified in subsections 4.3 and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates7.3.
(ab) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof an Incremental Facility Activation Notice executed by the Borrower. Any additional bank, Company and the financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall institutions (who must be reasonably satisfactory acceptable to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender Company and the Administrative Agent. No ) identified as “Incremental Lenders” therein who have executed such Incremental Facility Amendment Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall require the consent of any become Lenders other than the Additional Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Amendment. No Lender Activation Notice shall be obligated specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to provide any such Incremental Facility, unless it so agrees. Commitments (v) whether such Incremental Lenders may elect to decline prepayments as specified in respect of any subsection 8.6 and are entitled to share in mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall become Commitments under be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable make Incremental Loans to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction Company on the date thereof (each, an “or during the periods specified in such Incremental Facility Closing Date”) that at the time and after giving effect Activation Notice. Nothing in this subsection 16.13 shall be construed to the incurrence of obligate any Lender not party to such Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant Activation Notice to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of execute an Incremental Term Facility is used Loan Activation Notice or to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an make Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Loans.
Appears in 1 contract
Incremental Facility. (a) The Borrower may from time to time amend this Agreement request (but subject, in order to provide each case, to the Borrower additional revolving conditions set forth in clause (b) below and the other terms set forth in this Section 2.27) the Lenders establish commitments (“Incremental Commitments”) to make an incremental term loan facility including term loan facilities and/or increased revolving in the form of commitments to make delayed draw term loans, in respect of an aggregate principal amount not to exceed the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (eacheach such facility, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”); together with any Incremental Revolving Facilityprovided that prior to the Delayed Draw Termination Date, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities Borrower shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined have first either (x) on a pro forma basis after giving effect to drawn the provision of such Incremental Facility, Delayed Draw Commitments in full or (y) assuming such terminated all unused Delayed Draw Commitments before requesting an Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds Facility. No Lender shall be given pro forma effect obligated to participate in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each an Incremental Facility. Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement.
(iiib) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least fifteen (15) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each existing Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility unless it elects to do so in pro forma compliance its sole discretion and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent fifteen (15) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any additional bank, financial institution and other institutional lenders or investors, subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), to become an Incremental Lender in connection with the financial covenants set forth proposed Incremental Facility under terms no more favorable (taken as a whole) to such other lenders and investors than those initially offered to each existing Lender;
(ii) each Lender agreeing to participate in Section 7.1 after giving effect to the incurrence of any such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to Borrower and the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of signed an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agreeJoinder. In addition, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to consent of the Administrative Agent, the Borrower and the Lenders providing agreeing to such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under may amend this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, Person) in order to effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section 2.27 (including to provide for voting provisions applicable any such amendment, an “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the Additional Lenders). The effectiveness contrary in this Agreement or in any other Loan Document, an Incremental Amendment reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility Amendment shallFacility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, unless otherwise each of the conditions precedent set forth in Section 5.2(a) and (c) are satisfied; provided that to the extent agreed to by the Administrative Agent Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the Additional Lenderslenders providing such Incremental Facility; provided further that the condition set forth in Section 5.2(c) may be satisfied, be subject if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to the satisfaction on the date thereof Section 8.1(a) or (each, an “Incremental Facility Closing Date”f) that at the time and has occurred or is continuing;
(iv) after giving pro forma effect to the incurrence of any such Incremental Facility and the use of proceeds thereofthereof for such Incremental Facility, (A) the Consolidated First Lien Net Leverage Ratio shall not exceed 4.00 to 1.00 and (B) the ARR Total Leverage Ratio shall not exceed 0.665:1.00, in each case, calculated on a Pro Forma Basis as of the representations end of the most recent Test Period (assuming, in each case, that (x) in the case of any Incremental Facility being incurred at such time in the form of commitments to make delayed draw term loans, assuming such delayed draw term loans were fully drawn, and warranties made by (y) the proceeds of any such Incremental Facility incurred at such time shall not be netted from the Consolidated First Lien Net Leverage Ratio);
(v) the terms and conditions with respect to any such Incremental Loan Party in or pursuant to the Loan Documents shall be true determined by the Borrower and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such datethe Lenders thereunder, but shall not be, except to the extent that such representations and warranties specifically refer permitted by Section 2.27(b)(ix) below, materially more favorable (taken as a whole) to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as the Lenders of such earlier date; provided that, Incremental Loans than the existing terms and conditions in this Agreement and the event other Loan Documents (taken as a whole) that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and apply to the extent Lenders of the Additional Lenders participating then outstanding Loans (unless such existing terms and conditions contained in such tranche of an Incremental Term Facility agree, this Agreement and the foregoing shall be limited other Loan Documents are amended so as to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material conform to the interests materially more favorable terms and conditions that apply to the Lenders of the Lenders and only Incremental Loans or are otherwise reasonably satisfactory to the extent that the Borrower or its applicable Subsidiary has the right Administrative Agent);
(vi) (A) subject to terminate its obligations (or decline to consummate the acquisitionSection 2.27(b)(ix) under such agreement as a result of a breach of such representations. The proceeds of below, any Incremental Facility will be used only for general corporate purposes pricing (including, for the avoidance of doubt, Permitted Acquisitions any call protection or prepayment premiums, interest rate margins, original issue discount or upfront fees (if any) and interest rate floors (if any)), (B) subject to Section 2.27(b)(vii) below, maturity, and (C) subject to Section 2.27(b)(vii) below, any amortization schedule applicable to any Incremental Facility shall, in each case of clauses (A) through (C), be determined by the Borrower and the Lenders thereunder;
(A) any Incremental Facility providing for a separate tranche of Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Loans, and, in any case, (B) no Incremental Loan shall have a final maturity date earlier (but may be later) than the Maturity Date, (C) the amortization schedule of any Incremental Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Loans made on the Closing Date and (D) the Borrower at its election with the consent of the Administrative Agent, and without requiring the consent of any Lender, may effect such amendments to the Loan Documents with respect to Incremental Loans as may be reasonably necessary so that such Incremental Loans and the applicable existing Loans form the same class of Loans or so that such Incremental Loans are fungible with any other Investments outstanding Loans, including by amending the schedule of amortization payments relating to any existing tranche of Loans; provided that any such amendments will not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender immediately prior to the effectiveness of such applicable amendments;
(viii) any Incremental Loan shall rank pari passu (x) in right of payment of the Loans and Restricted Payments(y) in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder or secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount, closing and upfront fees, initial commitment fees and similar fees, if any, but excluding customary arrangement, structuring, underwriting and amendment fees (“All-In Yield”)) applicable to any Incremental Facility shall not be more than 0.50% per annum higher than the All-In Yield with respect to the then existing Loans under the Closing Date Facilities unless the Applicable Margin with respect to such existing Loans under the Closing Date Facilities is increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Facility and the All-In Yield applicable to the then existing Loans under the Closing Date Facilities minus 0.50% per annum;
(x) any “most favored nation” pricing provision with respect to the Incremental Loans shall be determined by the Borrower and the Incremental Lenders providing such Incremental Loans; provided that no such “most favored nation” pricing provision shall be more favorable to the applicable Incremental Lenders than that contained in clause (ix) of this Section 2.27(b);
(xi) the Borrower shall have paid all fees and expenses in connection with the exercise of the applicable Incremental Facility;
(xii) all Incremental Loans shall be denominated in Dollars; and
(xiii) each Lender making the Incremental Loans shall have received the approval of such ▇▇▇▇▇▇’s investment committee approval (in such investment committee’s sole discretion) with respect thereto.
(c) Upon the effectiveness of any Incremental Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent. This Section 2.27 supersedes any provisions in Section 10.1 to the contrary (other than amendments of provisions that are described in Section 10.1(a), which shall be governed by Section 10.1).
Appears in 1 contract
Incremental Facility. (ai) The So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time and from time to time amend after the Restatement Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in order to provide to this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving FacilityCommitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and loans pursuant thereto “together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving FacilityCommitments, the “Incremental FacilitiesCommitments”), provided that that, (i) the aggregate principal amount of the Incremental Facilities Commitments permitted pursuant to this subsection 2.5 shall not exceed $200,000,000exceed, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facility, no Event of Default shall have occurred Facilities Amount” and be continuing; provided that, in the event that (ii) if any tranche US-DOCS\174379359.10 portion of an Incremental Term Facility Commitment is used to finance a Limited Conditionality Acquisition and to be incurred in reliance on clause (i) of the extent the Additional Lenders participating in such tranche definition of an “Maximum Incremental Term Facility agreeFacilities Amount”, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility Borrower shall have delivered a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory certificate to the Administrative Agent, certifying compliance with the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as financial test set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortizationclause. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments Any loans made in respect of any such Incremental Revolving Facility, Extended Revolving Commitment (other than Supplemental Term Loan Commitments and any original Supplemental Revolving Commitments) that have more than four different maturity datesshall be made by creating a new Tranche.
(aii) An Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall Commitments. The Incremental Commitments (or any portion thereof) may be made available by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder upon delivery to or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(iii) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b) or, (c) or (d)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the Issuing provisions of this subsection 2.5. Upon effectiveness of the Lender (to Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the extent such consent would be required with respect to an assignment term loan made pursuant to such Additional Lender Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to Section 10.6such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(iv) Incremental Commitments (other than Supplemental Term Loan Commitments and (iiSupplemental Revolving Commitments) shall become a Lender commitments under this Agreement pursuant to an amendment (an “Incremental Facility Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, Borrower and each Additional Lender and the Administrative Agent. No applicable Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this AgreementLender. An Incremental Facility Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this Section subsection 2.5 and/or (including to provide for voting provisions applicable y) so long as such amendments are not materially adverse to the Additional other Lenders). The effectiveness , to maintain the fungibility of any such Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that Term Loans with any tranche of an then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility is used Obligations on a pari passu basis therewith, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement secured by any Collateral or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds assets of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).US-DOCS\174379359.10
Appears in 1 contract
Sources: Credit Agreement Amendment (US Foods Holding Corp.)
Incremental Facility. (a) The Subject to the terms and conditions set forth herein, the Parent Borrower may shall have the right, at any time and from time to time amend during the period from the Closing Date until the second anniversary of the Closing Date (but not to exceed three (3) increases in the aggregate), to incur additional Indebtedness under this Agreement in order to provide the form of an increase to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect Revolving Committed Amount (each an "Incremental Facility") by an aggregate amount of the Revolving Facility or any other existing revolving facility hereunder up to $25,000,000. The following terms and conditions shall apply to each Incremental Facility: (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (ia) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming loans made under any such Incremental Facility is fully drawn as of such date (each an "Additional Loan") shall constitute Borrowers' Obligations and will be secured and guaranteed with the other Borrowers' Obligations on a pari passu basis, (zb) disregarding the proceeds of any such Incremental Facility in calculating shall have the same terms (including interest rate and maturity date) as the existing Revolving Loans, (c) any such leverage ratio (it being understood that, if applicable, the use of such proceeds Incremental Facility shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered entitled to the Administrative Agent same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of prepayments on the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00same basis as the existing Revolving Loans, (iid) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (e) any such Incremental Facility shall be in a minimum aggregate principal amount of $25,000,0005,000,000 and integral multiples of $1,000,000 in excess thereof, (iiif) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (g) the Borrowers shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (h) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied and (i) the Administrative Agent shall have received from the Parent Borrower shall updated financial projections and an officer's certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility on a pro forma basis, the Borrowers will be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect 5.9. Participation in the Incremental Facility shall be offered first to each of the incurrence existing Lenders, but each such Lender shall have no obligation to provide all or any portion of the Incremental Facility. If the amount of the Incremental Facility requested by the Parent Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, then the Parent Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Agreement as Lenders hereunder for the portion of such compliance Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to be determined (x) on the basis of the financial information most recently delivered to give effect thereto as the Administrative Agent and the Lenders pursuant Parent Borrower may reasonably request. The Administrative Agent is authorized to Section 6.1(a) or (b) as though such incurrence had been consummated as enter into, on behalf of the first day of the fiscal period covered therebyLenders, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect any amendment to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness terms of any new Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)therein.
Appears in 1 contract
Incremental Facility. (a) The Borrower may At any time and from time to time amend this Agreement in order to provide time, subject to the terms and conditions set forth herein, the Borrower additional revolving loan facilities and/or increased revolving commitments in respect may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Facility Lenders), request to add one or any other existing revolving facility hereunder more additional tranches of term loans (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto the “Incremental Term Loans”; together with any Incremental ) or one or more increases in the Revolving Facility, Commitments (the “Incremental FacilitiesRevolving Commitments”), provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (iA) no Default or Event of Default has occurred and is continuing or shall result therefrom, (B) the aggregate principal amount of the Incremental Facilities Borrower shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) be in compliance on a pro forma basis after giving effect to Pro Forma Basis with the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date covenants contained in Sections 6.12 and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) 6.13 recomputed as of the last day of the most most-recently ended fiscal quarter Test Period for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a5.01(a) or (b) is less than 2.50:1.00), (iiC) each Incremental Facility the Senior Secured Leverage Ratio of the Borrower, computed on a Pro Forma Basis as of the last day of the most-recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b), shall be in a minimum aggregate principal amount no greater than the Senior Secured Leverage Ratio of $25,000,000, (iii) the Borrower shall be in pro forma compliance with on the financial covenants set forth in Section 7.1 Effective Date (after giving effect to the incurrence Transactions) and (D) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A), (B) and (C) above, together with reasonably detailed calculations demonstrating compliance with clauses (B) and (C) above. Notwithstanding anything to contrary herein, the principal amount of any Incremental Term Loans or Incremental Revolving Commitments shall not exceed the Incremental Amount at such time. Each tranche of Incremental FacilityTerm Loans and Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $50,000,000 in case of Incremental Term Loans or $25,000,000 in case of Incremental Revolving Commitments, provided that such compliance to amount may be determined less than the applicable minimum amount if such amount represents all the remaining availability under the Incremental Amount set forth above.
(xb) on the basis Any Incremental Term Loans (i) shall rank pari passu or junior in right of payment in respect of the financial information most recently delivered Collateral and with the Obligations in respect of the Revolving Commitments, the Tranche B Term Loans and the Tranche B Euro Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans and Tranche B Euro Term Loans and (iii) other than amortization, pricing or maturity date, shall have the same terms as the Tranche B Term Loans or such terms as are reasonably satisfactory to the Administrative Agent and Agent, provided that (A) if the Lenders pursuant to Section 6.1(a) or Applicable Rate (b) as though which, for such incurrence had been consummated as of the first day of the fiscal period covered therebypurposes only, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect deemed to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility Term Loans and any Eurodollar LIBO or ABR floor applicable to such Incremental FacilityTerm Loans) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, and any EURO LIBO, LIBO or ABR floor applicable to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable) relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR floor applicable to such Incremental Term Loans) relating to such Incremental Facility Term Loans minus 0.25%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche B Maturity Date or the Tranche B Euro Maturity Date, as applicable, and (C) any Incremental Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche B Term Loans or Tranche B Euro Term Loans, as applicable. Any Incremental Revolving Commitment shall be on such terms as are reasonably satisfactory (other than pricing) and pursuant to the Administrative Agentdocumentation applicable to the Revolving Commitments; provided that if the Applicable Rate (which, the Borrower and the for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility. The terms Revolving Commitments and any LIBO or ABR floor applicable to such Incremental Revolving Commitments) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Commitments) relating to the Revolving Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Revolving Commitments shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect adjusted to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory be equal to the Administrative Agent and the Borrower and Applicable Rate (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunderwhich, the manner in which for such increase is implemented purposes only, shall be reasonably satisfactory deemed to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Revolving Facility, Extended Revolving Commitments and any original LIBO or ABR floor applicable to such Incremental Revolving Commitments) that have more than four different maturity datesrelating to such Incremental Revolving Commitments minus 0.25%.
(ac) An Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the BorrowerTerm Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans Incremental Term Loans or commitments under an Incremental Facility Revolving Commitments shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide provided any Incremental FacilityTerm Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Facility Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional LendersLenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party conditions set forth in or pursuant Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representationsClosing Date). The proceeds of any Incremental Facility Term Loans will be used only for general corporate purposes (includingincluding Permitted Acquisitions). Upon each increase in the Revolving Commitments pursuant to this Section, for each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the avoidance Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of doubtsuch increase, Permitted Acquisitions and other Investments each such Incremental Revolving Lender will automatically and Restricted Payments).without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving
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Incremental Facility. (a) The At any time from the Closing Date until the Term Loan Maturity Date, the Borrower may from time to time amend this Agreement in order to provide request (but subject to the Borrower additional revolving conditions set forth below) (x) to have new Term Loans made available (each a “Term Increase”) or to add one or more incremental term loan facilities and/or (collectively with any Term Increase, each an “Incremental Term Loan Facility” and the loans thereunder, “Additional Term Loans”), or (y) the Revolving Commitment be increased revolving commitments in respect by an amount not to exceed the Available Revolving Increase Amount (each such increase of the Revolving Facility or any other existing revolving facility hereunder (Commitment, a “Revolver Increase” and together with the Term Increase, each, an “Incremental Revolving FacilityIncrease” and loans pursuant thereto “collectively, with any Incremental Revolving Loans”) and additional term loan facilities hereunder (eachTerm Loan Facility, each an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”). Notwithstanding anything to contrary herein, provided that (i) the aggregate principal amount of the all Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio and Incremental Equivalent Debt (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of incurrence), shall not exceed the execution sum of (i) the acquisition agreement Unrestricted Incremental Amount plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity retirements of the Term Facility Loans effected after the Closing Date (provided including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and that any Incremental Term Facility may amortize are offered to all Lenders on a pro rata basis, in an amount such that it is fungible equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the Term Loan Facilityproceeds of substantially concurrent borrowings of new Loans hereunder and (B) and a final maturity no earlier than prepayments with the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin proceeds of substantially concurrent incurrence of other long term Indebtedness) (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agentthis clause (ii), the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional LenderVoluntary Prepayment Amount”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).plus
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Incremental Facility. The Borrower shall have the right to increase the commitments to the Senior Credit Facility in an aggregate amount up to $100,000,000 at any time on or before the final maturity date, on the same terms as in the Existing Credit Agreement after giving effect to the Documentation Principles. Purpose: Proceeds of the Senior Credit Facility (in up to an amount equal to or less than the difference between (a) The Borrower may from time to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of amount that would not cause the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Total Leverage Ratio (determined (x) as defined in the Existing Credit Agreement after giving effect to the Documentation Principles), calculated on a pro forma basis after giving effect to the provision consummation of such Incremental the Transactions and the initial funding of the Senior Credit Facility, to exceed 4.75:1.00 minus (yb) assuming such Incremental Facility is fully drawn any Pro Rata Purchase Price Reduction (as of such date and (z) disregarding defined below)), together with the proceeds of such Incremental the Arc Equity Contribution, shall be used on the date that the initial funding under the Senior Credit Facility in calculating such leverage ratio occurs (it being understood thatthe “Closing Date”) (i) to finance, if applicabledirectly or indirectly, the use acquisition (the “Acquisition”) of such proceeds shall be given pro forma effect in such calculation)) as 60% of the last day membership interests of Joliet Bulk, Barge & Rail LLC (the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00“Acquired Business”), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000to refinance existing indebtedness under that certain Second Amended and Restated Revolving Credit Agreement, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated dated as of November 12, 2013 (the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date “Existing Credit Agreement”; capitalized terms used herein and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default not otherwise defined shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as meanings set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term FacilityExisting Credit Agreement), pricing or maturity dateby and among the Company, each Incremental Facility shall have the same terms as lenders from time to time party thereto (collectively, the Term Facility or the Revolving Facility“Existing Lenders”) and SunTrust Bank, as applicableadministrative agent for the Existing Lenders, or such terms as are reasonably satisfactory and (iii) to the Administrative Agent pay fees, costs and expenses incurred by the Borrower and (ii) no Incremental Revolving its affiliates in connection with entering into the Senior Credit Facility shall have any amortizationand consummating the Acquisition and transactions related thereto. In Proceeds of the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Senior Credit Facility shall be made available hereunder upon delivery to used after the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including Closing Date to provide for voting provisions applicable working capital and capital expenditures relating to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent terminal construction and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or for other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)purposes.
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Sources: Interim Investors Agreement (Arc Logistics Partners LP)
Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity Date (in the case of an Incremental Term Facility), the Borrower may from time request (but subject, in each case, to time amend the conditions set forth in clause (b) below) (x) the Revolving Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in order an aggregate principal amount not to provide to exceed the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eacheach such facility, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; and, together with any Incremental Revolving FacilityCommitment Increase, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities . No Lender shall not exceed $200,000,000, plus additional amounts be obligated to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such participate in an Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each . Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(iiib) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in pro forma compliance such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the financial covenants set forth proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 7.1 after giving effect 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such compliance to Incremental Facility, the condition set forth in Section 5.2(a) may be determined satisfied with (x) on the basis accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the financial information most recently delivered to lenders providing such Incremental Facility); provided further that the Administrative Agent and condition set forth in Section 5.2(e) may be satisfied, if agreed by the Lenders lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 6.1(a8.1(a) or (bf) as though has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence had been consummated of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the first day end of the fiscal period covered thereby, (y) assuming most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility is fully drawn as of such date and (z) disregarding without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in calculating the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such leverage ratio (it being understood thatperiod, if applicable, and the use Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of such proceeds shall be given pro forma effect in such calculation) and this clause (iv) at the time and after giving effect to clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental FacilityTerm Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Event of Default Incremental Term Loan shall have occurred a final maturity date earlier than the Term Loan Maturity Date (but may be later), and be continuing; provided that, in (B) the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect amortization schedule of any Incremental Facility and all obligations in respect thereof Term Loan shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must not have a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans made on the Closing Date;
(provided that viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility may amortize in an amount such that it is fungible with the Term Loan Facility) will be guaranteed by any Person other than a Guarantor hereunder and a final maturity no earlier shall not be secured by any property or assets other than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights Collateral;
(ix) the all-in yield (based on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or interest rate and original issue discount payable and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to all Lenders providing any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and any Eurodollar or ABR floor the all-in yield applicable to such Incremental Facilitythe then-existing Term Loans minus 0.50%; and
(x) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower shall have paid all fees and expenses in connection with the Lenders providing such Incremental Facility. The terms exercise of the applicable Incremental Facility shall be as set forth in Facility.
(c) Upon the applicable effectiveness of any Incremental Facility Amendment; provided that Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than amortization in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as which differ from those with respect to the Term Facility Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or the Revolving Facility, as applicable, or such terms as are otherwise be reasonably satisfactory acceptable to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility it being understood that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required terms differing from those with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction Term Loans made on the date thereof Closing Date are acceptable if (each, an “Incremental Facility Closing Date”1) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and under the Term Loan Facility also receive the benefits of each term or (2) are applicable only to after the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted PaymentsTerm Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any time or from time to time amend this Agreement in order to provide after the ClosingSecond Amendment Effective Date, by notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in respect the amount of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any the Incremental Revolving FacilityTerm Facilities, the each an “Incremental FacilitiesFacility”), ; provided that (i) at the time of such request, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio Available Incremental Amount (as determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day date of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each incurrence of any applicable Incremental Facility). Each Incremental Facility shall be in a minimum an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Term Facility shall not mature earlier than the Maturity Date nor have amortization of $25,000,000greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Borrower Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect same as those applicable to the incurrence of such Incremental Revolving Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect Applicable Margin relating to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, determined by the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Term Facility and (v) any Incremental Term Facility shall otherwise be as set forth in on terms and pursuant to documentation to be determined by the applicable Borrower and the Persons willing to provide such Incremental Facility AmendmentTerm Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (i) other than amortization (with respect to any Incremental Term Facility)pricing, pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent amortization and the Borrower and (iimaturity) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented they shall be reasonably satisfactory to the Administrative AgentAgent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). At no time Each notice from the Borrower pursuant to this Section 2.23 shall there be Revolving Commitments hereunder (including revolving commitments in respect set forth the requested amount and proposed terms of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An the relevant Incremental Facility shall and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be made available hereunder upon delivery to the Administrative Agent of notice thereof executed provided by the Borrower. Any additional bank, financial institution, any existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to by any Eligible Assignee selected by the Borrower (any such bank, other financial institution, existing Lender institution or other Person fund being called an “Additional Lender”) and); provided that the Administrative Agent, if not already a the Swingline Lender, and the Issuing Bank shall (i) be subject to the consent have consented (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, the Issuing Lender (to the extent such Additional Lender’s providing such Incremental Facility if such consent would be required with respect to under Section 10.4 for an assignment of Loans to such Additional Lender pursuant to Section 10.6) and (ii) Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative AgentAgent pursuant to Section 10.2(b) hereof. No The Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without need for the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders)2.23. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that at all references to the time date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to the incurrence of any Incremental Facility Revolving Facility, each Lender’s and the use each Additional Lender’s, if any, Pro Rata Share of proceeds thereof, each of the representations Revolving Commitments and warranties made by any Loan Party the Revolving Loans shall equal such Lender’s and such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments after giving effect to such Incremental Revolving Facility; provided further, that in or pursuant to furtherance of the Loan Documents foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be true deemed to have irrevocably sold, transferred, conveyed and correct in all material respects assigned to each other Lender and each other Additional Lender, if any (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (includingwithout, for the avoidance of doubt, Permitted Acquisitions increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and other Investments Revolving Loans such that, after giving effect to such assignment, each Lender and Restricted Payments)each Additional Lender, if any, shall hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) The So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time and from time to time amend after the Restatement Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in order to provide to this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving FacilityCommitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and loans pursuant thereto “together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving FacilityCommitments, the “Incremental FacilitiesCommitments”), provided that that, (i) the aggregate principal amount of the Incremental Facilities Commitments permitted pursuant to this subsection 2.5 shall not exceed $200,000,000exceed, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facility, no Event of Default shall have occurred Facilities Amount” and be continuing; provided that, in the event that (ii) if any tranche portion of an Incremental Term Facility Commitment is used to finance a Limited Conditionality Acquisition and to be incurred in reliance on clause (i) of the extent the Additional Lenders participating in such tranche definition of an “Maximum Incremental Term Facility agreeFacilities Amount”, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility Borrower shall have delivered a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory certificate to the Administrative Agent, certifying compliance with the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as financial test set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortizationclause. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments Any loans made in respect of any such Incremental Revolving Facility, Extended Revolving Commitment (other than Supplemental Term Loan Commitments and any original Supplemental Revolving Commitments) that have more than four different maturity datesshall be made by creating a new Tranche.
(ab) An Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall Commitments. The Incremental Commitments (or any portion thereof) may be made available by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder upon delivery to or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b) or (c)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the Issuing provisions of this subsection 2.5. Upon effectiveness of the Lender (to Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the extent such consent would be required with respect to an assignment term loan made pursuant to such Additional Lender Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to Section 10.6such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and (iiSupplemental Revolving Commitments) shall become a Lender commitments under this Agreement pursuant to an amendment (an “Incremental Facility Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, Borrower and each Additional Lender and the Administrative Agent. No applicable Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this AgreementLender. An Incremental Facility Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this Section subsection 2.5 and/or (including y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecuredon a pari passu basis therewith, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for voting provisions applicable (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the Additional Lendersextent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans pursuant to subsection 3.4(c). The effectiveness of any , on more than a ratable basis with the Initial Term Loans, Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the incurrence of any Incremental Facility maturity date and the use weighted average life to maturity of proceeds thereofsuch Incremental Term Loan Commitments shall be no earlier than or shorter than, each as the case may be, the InitialRepriced B-2021 Term Loan Maturity Date or the Replacement B-2024 Term Loan Maturity Date or the remaining weighted average life to maturity of the representations InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the InitialRepriced B-2021 Term Loan Maturity Date or the Replacement B-2024 Term Loan Maturity Date or the remaining weighted average life to maturity of the InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as applicable); (iv) the interest rate margins and warranties (subject to clause (iii) above) amortization schedule applicable to the loans made by any Loan Party in or pursuant to the Loan Documents Incremental Commitments shall be true determined by the Borrower and correct the applicable Incremental Lenders; (v) such Incremental Commitment Amendment may provide for (1) the inclusion, as appropriate, of Additional Incremental Lenders in all material respects any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) the amendment of the definitions of “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the InitialRepriced B-2021 Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date andor the Replacement B-2024 Term Loan Maturity Date or in all respects if qualified by materiality) on and as the remaining weighted average life to maturity of such date Incremental Termthe Repriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as if made on applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of such dateIncremental Term Loans, the terms and documentation governing the InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans (except to the extent that such representations and warranties specifically refer to an earlier datepermitted by clause (iii), in which case (iv), (v) or (vi) above), they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and reasonably satisfactory to the extent Borrower and the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Administrative Agent.
Appears in 1 contract
Incremental Facility. (a) The At any time during the Revolving Commitment Period, the Borrower may from time to time amend this Agreement in order to provide request (but subject to the Borrower additional revolving loan facilities and/or conditions set forth in clause (b) below) that the Total Revolving Commitment be increased revolving commitments in respect of by an amount not to exceed the Available Revolving Facility or any other existing revolving facility hereunder Increase Amount (eacheach such increase, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental FacilitiesIncrease”), provided that (i) the aggregate principal amount of the Incremental Facilities . The Administrative Agent shall not exceed $200,000,000, plus additional amounts invite each Lender to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio increase its Revolving Commitments (it being understood that, if applicablethat no Lender shall be obligated to increase its Revolving Commitments) in connection with a proposed Increase. In addition, the use of Borrower may seek an Increase from any other banks, financial institutions and other institutional lenders that agree to become Lenders in connection therewith in accordance with Section 2.12(b)(iii) (the “Additional Lenders”); provided that any such proceeds Additional Lender must be an Eligible Assignee. Any Increase shall be given pro forma effect in such calculation)) as an amount of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the last day Increases to the Total Revolving Commitments exceed $100,000,00050,000,000 during the term of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or Agreement.
(b) is less than 2.50:1.00Each of the following shall be conditions precedent to any Increase of the Revolving Commitments in connection therewith:
(i) any Increase shall be on the same terms (including the pricing, and maturity date), as applicable, as, and pursuant to documentation applicable to, the original Revolving Facility;
(ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect have delivered an irrevocable written request for such Increase at least ten (10) Business Days prior to the incurrence requested funding date of such Incremental FacilityIncrease;
(iii) each Lender and Additional Lender agreeing to such Increase, such compliance to be determined (x) on the basis of the financial information most recently delivered to Borrower and the Administrative Agent and the Lenders pursuant to Section 6.1(a) or have signed an Increase Joinder (b) as though such incurrence had been consummated as of the first day of the fiscal period covered therebyany Increase Joinder may, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to consent of the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment agreeing to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other LendersIncrease, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section 2.12) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase (including to provide for voting provisions applicable it being understood and agreed that, notwithstanding anything to the Additional Lenderscontrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby (so long as such amendments only implement the increase permitted hereby). The effectiveness , shall not require the consent of any Incremental Facility Amendment shall, unless otherwise agreed Lender other than the Lender(s) agreeing to by fund such Increase);
(iv) each of the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof conditions precedent set forth in Section 5.2 are satisfied; 2125320.12125320.11
(each, an “Incremental Facility Closing Date”v) that at the time and after giving pro forma effect to the incurrence of any Incremental Facility such Increase and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase, (B) the Borrower shall be in compliance with each of the representations financial covenants set forth in Section 7.1 hereof (calculated with respect to Section 7.1(a) and warranties (b) as of the end of the most recently ended quarter for which financial statements have been delivered prior to such Increase as though such Increase were made on the last day of such quarterhave Liquidity of at least $200,000,000 (plus the amount of any Increase) immediately after giving effect to such Increase and the use of proceeds thereof, which must include at least $100,000,000 (plus the amount of any Increase) of cash or Cash Equivalents held by any Loan Party in Deposit Accounts or Securities Accounts subject to Control Agreements maintained with SVB or an Affiliate thereof (excluding cash and Cash Equivalents securing letters of credit or subject to any Lien other than Liens permitted under Section 7.3(a) or (l)), and (C) the Borrower shall have delivered to the Administrative Agent a Compliance Certificatecertificate evidencing compliance with the requirements of this clause (v), together with all reasonably detailed calculations demonstrating such compliance;
(vi) the Borrower shall have delivered to the Administrative Agent (A) the relevant board resolutions or written consents of each Loan Party approving such Increase and (B) legal opinion(s) relating to the matters described above, which opinion(s) shall be in customary form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; and
(vii) in connection with such Increase, the Borrower shall pay to Administrative Agent all fees required to be paid pursuant to the terms of the Fee Letter.
(c) Upon the funding of any Increase, (i) all references in this Agreement and any other Loan Document to the Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.12 and (ii) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.12.
(d) The Revolving Loans and Revolving Commitments established pursuant to this Section 2.12 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents shall continue to be true and correct in all material respects (perfected under the Code or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except otherwise after giving effect to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds establishment of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)such new Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Fitbit Inc)
Incremental Facility. (a) The A Borrower may from at any time after the Initial Utilization Date but prior to time amend this Agreement in order to provide 180th day prior to the Borrower additional revolving loan facilities and/or increased revolving commitments in Maturity Date with respect of to the Term Facility or the Revolving Facility or Credit Facility, as the case may be, but in any other existing revolving facility hereunder (eachevent not more than on five occasions, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional by notice to the Administrative Agent, request the addition of a new term loan facilities hereunder facility (each, an “Incremental Term Facility”) or an increase in the Revolving Credit Facility (each, a “Revolving Facility Increase” and loans pursuant thereto and, together with the Incremental Term Facilities, an “Incremental Term LoansFacility”; together with any Incremental Revolving Facility, ) pursuant to additional commitments (the “Incremental FacilitiesCommitments”)) in an aggregate amount not to exceed $100,000,000 to be effective as of a date (the “Increase Date”) as specified in the related Incremental Assumption Agreement, provided which Increase Date must be (in the case of a Revolving Facility Increase) at least 90 days prior to the scheduled Maturity Date of the Revolving Credit Facility then in effect; provided, however, that (i) in no event shall the aggregate principal amount of all of the Incremental Commitments (for all Incremental Facilities shall not in aggregate) exceed $200,000,000100,000,000 (for, plus additional amounts to the extent avoidance of doubt, taking the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to aggregate of the provision of Incremental Commitments for each Incremental Facility upon the Increase Date for such Incremental Facility and without taking into account any subsequent reduction in the same through utilization, repayment or prepayment, but, for the further avoidance of doubt, excluding, in the case of any Incremental Term Facility, (yA) assuming the Availability Period under which has already expired, any unutilized Incremental Commitments for such Incremental Term Facility is fully drawn as at the end of such date Availability Period) and (zB) disregarding the proceeds of such any unutilized Incremental Commitments for any Incremental Term Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements that have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00cancelled in accordance with this Agreement, (ii) each new Incremental Facility shall be in a minimum an aggregate principal amount of not less than $25,000,0005,000,000, (iii) on the date of any such request by the Term Borrower shall be in pro forma compliance with for an Incremental Facility and on the financial covenants related Increase Date, the applicable conditions set forth in Section 7.1 4.02 shall be satisfied, (iv) the requirements under Section 7.11 shall have been tested at least once after the Closing Date and such requirements would have been complied with in respect of the latest Measurement Period (for which such requirements were tested under Section 7.11 by reference to financial statements delivered under Section 6.01) after giving pro forma effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn and the use of proceeds thereof (as of such date and (z) disregarding the proceeds of if such Incremental Facility was borrowed and utilized in calculating full throughout such leverage ratio Measurement Period), (it being understood that, if applicable, the use of v) such proceeds Incremental Facility shall be given pro forma effect used for working capital, acquisitions and other general corporate purposes not in such calculation) and (iv) at the time and after giving effect to the incurrence contravention of any Incremental FacilityLaw or Loan Document, no Event of Default shall have occurred and be continuing; provided that, (vi) (in the event that any tranche case of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to Facility) the extent the Additional Lenders participating in final maturity of such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at equal to or later than the time final maturity of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement Term Facility, and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer of such Incremental Term Facility shall be no shorter than the then remaining weighted average life to maturity of the Term Facility Facility, (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facilityvii) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth (A) (in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any case of an Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have ) a new term facility on the same terms as the Term Facility except as to interest rates, scheduled repayment and final maturity (for the avoidance of doubt, there shall not be any voluntary or mandatory prepayment of such Incremental Term Facility except as expressly set forth in this Agreement) or (B) (in the case of an Revolving Facility Increase) an increase in the Revolving Credit Facility existing prior to such Increase Date, in which case the requirements of Section 2.14(f) shall apply, (viii) the requirements of Section 2.14(d) are satisfied and (ix) only the Term Borrower may request for any Incremental Term Facility and only the Revolving Credit Borrower may request for a Revolving Facility Increase.
(b) The Administrative Agent shall promptly notify the Lenders of a request by the applicable Borrower for an Incremental Facility, as applicablewhich notice shall include (i) the proposed amount, type (whether Incremental Term Facility or Revolving Facility Increase), the interest rates, scheduled repayment dates and the final maturity of such terms as are reasonably satisfactory Incremental Facility and (in the case of an Incremental Term Facility) whether Incremental Term Loans under such Incremental Term Facility shall share in any prepayment under Section 2.05(b) on a pro rata basis with the Term Loans, (ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in such Incremental Facility must commit to an Incremental Commitment with respect to such Incremental Facility (the “Commitment Date”). Each Lender that is willing to participate in such Incremental Facility (each an “Increasing Lender”) shall give written notice to the Administrative Agent on or prior to the Commitment Date of the amount of Incremental Commitment that it is willing to provide in respect of such Incremental Facility. If such Incremental Commitments provided by such Lenders exceed the amount of such requested Incremental Facility, such Incremental Commitments shall be allocated among such Lenders willing to participate therein in such amounts as determined by the Administrative Agent. The failure of any Lender to respond shall be deemed to be a refusal of such Lender to participate in such Incremental Facility. For the avoidance of doubt, no Lender shall be obliged to participate in any such Incremental Facility.
(c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the applicable Borrower as to the Incremental Commitments, if any, that the Lenders are willing to provide with respect to the requested Incremental Facility. If the aggregate Incremental Commitments that the Lenders are willing to provide with respect to such requested Incremental Facility on such Commitment Date is less than the requested amount of such Incremental Facility, then the applicable Borrower (requesting such Incremental Facility) may extend offers to one or more Eligible Assignees (each an “Assuming Lender” and together with the Increasing Lenders, the “Incremental Facility Lenders”) to participate in any portion of such Incremental Facility in respect of which Incremental Commitments have not been provided by the Lenders as of the applicable Commitment Date; provided, however, that the Incremental Commitment of each such Eligible Assignee shall be in an amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the amount that would, when aggregated with the Incremental Commitments of each other Incremental Facility Lender for such Incremental Facility, equal to the aggregate requested Incremental Commitments for such Incremental Facility).
(d) On or before the Increase Date with respect to any Incremental Facility, the Administrative Agent shall have received the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of the Borrowers and Holdings approving such Incremental Facility and the Borrower corresponding modifications to this Agreement and (iiB) no Incremental Revolving Facility shall have any amortization. In an opinion of counsel for the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunderBorrowers and Holdings, the manner in which such increase is implemented shall be a form reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.;
(aii) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bankan assumption agreement, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be in form and substance reasonably satisfactory to the Incremental Facility Lenders participating in such Incremental Facility, the applicable Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of and the Administrative Agent, the Issuing Lender Agent (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (each an “Incremental Facility AmendmentAssumption Agreement”) to this Agreement and), as appropriate, the other Loan Documents, duly executed by each of the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to participating in such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lendersapplicable Borrower, be subject and such other documentation as the Administrative Agent may reasonably specify to evidence the Incremental Commitment of each such Incremental Facility Lender in respect of such Incremental Facility, shall have been executed and delivered to the satisfaction on the date thereof (each, an “Administrative Agent. Such Incremental Assumption Agreement shall provide that each such Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Lender participating in such Incremental Facility that is not already a Lender at such time shall become party to this Agreement; and
(iii) such other documents, including an amendment to this Agreement, as the Administrative Agent may reasonably request. On the applicable Increase Date with respect to an Incremental Facility, upon fulfillment of the conditions set forth or referred to in Section 2.14(a) and in the immediately preceding sentence of this Section 2.14(d), the Administrative Agent shall notify the Incremental Facility Lenders and the use of proceeds thereofapplicable Borrower, each on or before 11:00 a.m., by telecopier, of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as establishment of such date as if made Incremental Facility on such Increase Date and as of shall record in the Register the relevant information with respect to each Incremental Facility Lender on such date, except to the extent .
(e) The maximum number of Borrowings that such representations and warranties specifically refer to an earlier date, in which case they shall may be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an made under each Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to shall be one (or such higher number as may be agreed between the extent Term Borrower, the Additional Lenders participating in such tranche of an Incremental Term Facility agree, and the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material Administrative Agent). Subject to the interests of the Lenders terms and only conditions set forth herein, each Incremental Facility Lender severally agrees to make Incremental Term Loans (under such Incremental Term Facility) to the extent that Term Borrower on any Business Day during the Borrower or its applicable Subsidiary has Availability Period for such Incremental Term Facility, in an aggregate amount not to exceed the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach unutilized amount of such representations. The proceeds of any Incremental Facility will be used only Lender’s Incremental Term Commitment for general corporate purposes such Incremental Term Facility (including, for the avoidance of doubt, Permitted Acquisitions upon the making of any Incremental Term Loan by an Incremental Facility Lender under any Incremental Term Facility, the unutilized amount of such Incremental Facility Lender’s Incremental Term Commitment for such Incremental Term Facility shall be permanently reduced by the amount of such Incremental Term Facility so made). Amounts borrowed under any Incremental Term Facility and repaid or prepaid may not be re-borrowed.
(f) On each Increase Date for any Revolving Facility Increase, in the event any Revolving Credit Loans are then outstanding, (i) each Incremental Facility Lender (participating in such Revolving Facility Increase) shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the Revolving Credit Lenders (other Investments than any such Incremental Facility Lender in its capacity as such), in order to cause, after giving effect to the applicable Revolving Facility Increase and Restricted Paymentsthe application of such amounts to make payments to such other Revolving Credit Lenders, the Revolving Credit Loans to be held ratably by all Revolving Credit Lenders as of such date in accordance with their respective Revolving Credit Commitments, (ii) the Revolving Credit Borrower shall be deemed to have prepaid and re-borrowed each outstanding Borrowing of Revolving Credit Loans as of such Increase Date (with each such Borrowing to consist of Revolving Credit Loans with an Interest Period specified in a notice delivered by the Revolving Credit Borrower in accordance with the requirements of Section 2.02) and (iii) the Revolving Credit Borrower shall pay to the Revolving Credit Lenders the amounts, if any, payable under Section 3.05) as a result of such prepayment. To the extent that there are Participations in Letters of Credit or Swing Line Loans, each Revolving Credit Lender’s Participation in each of the Letters of Credit and the Swing Line Loans shall be re-calculated based on its respective Applicable Revolving Credit Percentage (after giving effect to such Revolving Facility Increase but subject to any adjustment pursuant to Section 3.07(a)(ii)).
(g) The Borrowers and the Administrative Agent are authorized to enter into such amendments to the Loan Documents (other than the Issuer Documents) as may be necessary or desirable to implement the provisions of this Section 2.14. The Administrative Agent shall as soon as practicable notify the Lenders of such amendments to the Loan Documents (other than the Issuer Documents). It is agreed that each Assuming Lender shall become party to this Agreement (as a Lender and an Incremental Facility Lender) upon the execution and delivery by such Assuming Lender, the Borrowers and the Administrative Agent of the applicable Incremental Assumption Agreement in accordance with this Section 2.14.
(h) None of the Incremental Facilities shall have the benefit of any Guarantee or any Lien or other security except for the Guaranty, the Subsidiary Guarantee and Liens under the Loan Documents (other than the Issuer Documents) for the benefit of all of the Secured Obligations.
(i) This Section 2.14 shall supersede any provisions in Sections 2.13 or 11.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Incremental Facility. (a) The Borrower Company may from time to time prior to the third anniversary of the Closing Date amend this Agreement in order to provide to the Borrower Company additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”"INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”"INCREMENTAL TERM LOAN FACILITY"), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date 400,000,000 and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall 50,000,000. Each Incremental Facility will be in pro forma compliance secured and guaranteed with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed Facilities on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documentsbasis. Each Incremental Term Facility must have a weighted an average life to maturity which is the same or longer than the then remaining weighted average life to maturity 104 of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Revolving Credit Facility, Tranche A Term Loan Facility) Facility and Tranche B Term Loan Facility taken as a whole and a final maturity no earlier of at least six months longer than the Final Maturity Datefinal maturity date of the Tranche B Term Loan Facility. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility Facilities unless the applicable Incremental Facility Amendment Activation Notice specifies a lesser treatment. Each An Incremental Revolving Facility shall have may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof, no Default or Event of Default exists and the Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a final maturity no earlier than PRO FORMA basis, as reasonably determined by the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable Company after consultation with the Administrative Agent, to all Lenders providing give effect to the Loans to be made pursuant to such Incremental Facility and any Eurodollar or ABR floor applicable to such the Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of Incremental Facility) relating to such Incremental Facility shall Facilities may be on such terms as are reasonably satisfactory to used only for the Administrative Agent, the Borrower purposes specified in subsections 4.3 and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates7.3.
(ab) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof an Incremental Facility Activation Notice executed by the Borrower. Any additional bank, Company and the financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall institutions (who must be reasonably satisfactory acceptable to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender Company and the Administrative Agent. No ) identified as "Incremental Lenders" therein who have executed such Incremental Facility Amendment Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall require the consent of any become Lenders other than the Additional Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Amendment. No Lender Activation Notice shall be obligated specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to provide any such Incremental Facility, unless it so agrees. Commitments (v) whether such Incremental Lenders may elect to decline prepayments as specified in respect of any subsection 8.6 and are entitled to share in mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall become Commitments under be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable make Incremental Loans to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction Company on the date thereof (each, an “or during the periods specified in such Incremental Facility Closing Date”) that at the time and after giving effect Activation Notice. Nothing in this subsection 16.13 shall be construed to the incurrence of obligate any Lender not party to such Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant Activation Notice to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of execute an Incremental Term Facility is used Loan Activation Notice or to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an make Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Loans.
Appears in 1 contract
Incremental Facility. (a) The Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly notify the Lenders), at any time after the Closing Date, the Borrower may from time to time amend this Agreement request (i) additional commitments under the Term Facility (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Term Commitments”) and/or (ii) increases in order to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect aggregate amount of the Revolving Facility or any other existing revolving facility hereunder Commitments (eacheach such increase, an “Incremental Revolving FacilityCommitment” and loans pursuant thereto and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that (x) both before and after giving effect to any such addition(s), the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 after the Closing Date shall not exceed $100,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and (z) there shall be not more than three (3) such increases after the Closing Date.
(b) Any Loans made in respect of any Incremental Revolving Loans”Commitments shall be made by increasing the Total Revolving Commitment with the same terms (including pricing) and additional term loan facilities hereunder as the existing Revolving Loans (each, an a “Revolving Commitment Increase”). Any Loans made in respect of any Incremental Term Facility” and loans pursuant thereto Commitments (the “Incremental Term Loans”; together with any Incremental Revolving Facility) may be made, at the “Incremental Facilities”)option of the Borrower, provided that by either (i) issuing a commitment to make term loans with the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio same terms (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)including pricing) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) existing Term Loans, or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in creating a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any new tranche of terms loans (an “Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Loan Tranche”). Any Revolving Commitment Increases or Incremental Term Facility agree, the foregoing clause Loans (ivA) shall be tested solely at not have a final maturity earlier than the time of the execution of the acquisition agreement Revolving Facility Final Maturity Date or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have Final Maturity Date or a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Facility Loans, as the case may be, (provided that any Incremental Term Facility may amortize B) shall rank pari passu in an amount such that it is fungible right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loan FacilityLoans and (C) shall have such other terms and a final maturity no earlier than provisions, to the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on extent not consistent with the same basis Revolving Loans or the Term Loans, as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms case may be, as are reasonably satisfactory to the Administrative Agent, Joint Lead Arrangers.
(c) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and the Lenders providing such Incremental Facility. The proposed terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Commitments. Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and Loans (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any portion thereof) may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender institution or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower investing entity (any such bank, financial institution, existing Lender institution or other Person being called investing entity, an “Additional Incremental Lender”) ), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent (and, if not already in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender, ) shall (i) be subject to the consent have consented (not to be unreasonably withheld withheld) to such Lender's or delayed) of Incremental Lender's, as the Administrative Agentcase may be, the Issuing Lender (to the extent making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required with respect to under Section 12.4 for an assignment of Loans or Revolving Commitments, as applicable, to such Additional Lender pursuant or Incremental Lender, as the case may be. No Lender shall be obligated to Section 10.6provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender's Revolving Commitment) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (including in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to provide for voting provisions applicable respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Additional Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The effectiveness Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Facility Amendment shallCommitments are added in accordance with this Section 2.14, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to Borrower shall determine the satisfaction on effective date (the date thereof (each, an “Incremental Facility Closing Commitments Effective Date”) and the final allocation of such addition; provided, that at any existing Lender electing to participate in the time proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereofsuch increase, each of (A) the representations and warranties made by any Loan Party contained in or pursuant to Section 7 and the Loan other Credit Documents shall be are true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such datethe Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be have been true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the event that any tranche case of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of Commitment, shall make an Incremental Term Facility agreeLoan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be different).
(e) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Revolving Commitment Increase (each an “Incremental Revolving Lender”), and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's risk participation hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of such risk participations, the foregoing percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be limited accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition any transaction that are material may be effected pursuant to the interests of the Lenders and only immediately preceding sentence.
(f) This Section 2.14 shall supersede any provisions in Section 12.12 to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)contrary.
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) The At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term A Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan), the Borrower may from time request (but subject, in each case, to time amend the conditions set forth in clause (b) below) (x) the Revolving Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in order an aggregate principal amount not to provide to exceed the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder Available Incremental Amount (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eacheach such facility, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; and, together with any Incremental Revolving FacilityCommitment Increase, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities . No Lender shall not exceed $200,000,000, plus additional amounts be obligated to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such participate in an Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each . Any Incremental Facility shall be in a minimum aggregate principal an amount of at least $25,000,00010,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(iiib) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(a) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in pro forma compliance such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the financial covenants set forth proposed Incremental Facility;
(b) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 7.1 after giving effect 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(c) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such compliance to Incremental Facility, the condition set forth in Section 5.2(a) may be determined satisfied with (x) on the basis accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the financial information most recently delivered to lenders providing such Incremental Facility); provided further that the Administrative Agent and condition set forth in Section 5.2(e) may be satisfied, if agreed by the Lenders lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 6.1(a8.1(a) or (bf) as though has occurred or is continuing;
(d) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence had been consummated of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the first day end of the fiscal period covered thereby, (y) assuming most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility is fully drawn as of such date and (z) disregarding without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in calculating the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such leverage ratio (it being understood thatperiod, if applicable, and the use Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of such proceeds shall be given pro forma effect in such calculation) and this clause (iv) at the time and after giving effect to clause (iii) above;
(e) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(f) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(g) any Incremental FacilityTerm Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Event of Default Incremental Term Loan shall have occurred and a final maturity date earlier than the Term Loan Maturity Date (but may be continuing; provided thatlater), than the Term A Loan Maturity Date (in the event that any tranche case of an Incremental Term Facility that is used to finance a Limited Conditionality Acquisition and to an incremental Term A Loan) or the extent Term B Loan Maturity Date (in the Additional Lenders participating in such tranche case of an Incremental Term Facility agree, that is an incremental Term B Loan) and (B) the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect amortization schedule of any Incremental Facility and all obligations in respect thereof Term Loan shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must not have a weighted average life to maturity which is the same or longer shorter than the then remaining weighted average life to maturity of the Term Loans made on the Closing Date;then-existing Term A Loan (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the then-existing Term B Loan (provided in the case of an Incremental Term Facility that is an incremental Term B Loan);
(h) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility may amortize in an amount such that it is fungible with the Term Loan Facility) will be guaranteed by any Person other than a Guarantor hereunder and a final maturity no earlier shall not be secured by any property or assets other than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights Collateral;
(i) the all-in yield (based on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or interest rate and original issue discount payable and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to all Lenders providing any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term(x) in the case of an Incremental Term Facility that is an incremental Term A Loan, the Term A Loans (measured based on the all-in yield with respect to the then-existing Term A Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term A Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and any Eurodollar or ABR floor the all-in yield applicable to such the then-existing Term A Loans minus 0.50% or (y) in the case of an Incremental FacilityTerm Facility that is an incremental Term B Loan, the Term B Loans (measured based on the all-in yield with respect to the then-existing Term B Loans) relating unless the Applicable Margin with respect to the then-existing Term B Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility shall be on such terms as are reasonably satisfactory and the all-in yield applicable to the Administrative Agent, then-existing Term B Loans minus 0.50%; and
(j) the Borrower shall have paid all fees and expenses in connection with the Lenders providing such Incremental Facility. The terms exercise of the applicable Incremental Facility shall be as set forth in Facility.
(c) Upon the applicable effectiveness of any Incremental Facility Amendment; provided that Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than amortization in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as which differ from those with respect to the Term Facility Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or the Revolving Facility, as applicable, or such terms as are otherwise be reasonably satisfactory acceptable to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility it being understood that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required terms differing from those with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction Term Loans made on the date thereof Closing Date are acceptable if (each, an “Incremental Facility Closing Date”1) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and under the Term Loan Facility also receive the benefits of each term or (2) are applicable only to after the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted PaymentsTerm Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) The Borrower Representative may from time to time amend this Agreement in order to provide by written notice to the Borrower additional revolving loan facilities and/or increased revolving commitments Administrative Agent elect to request, prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “Incremental Revolving Commitments”), by an amount not in excess of $50,000,000 in the aggregate so long as the Secured Leverage Ratio (calculated on a pro forma basis) is no more than 3.00:1.00, in each case, with respect to any Incremental Revolving Commitments, assuming a borrowing of the Revolving Facility or any other existing revolving facility hereunder maximum amount of Loans available thereunder. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Facility” Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and loans pursuant thereto (B) the identity of each Lender or other Person that is an Eligible Assignee (an “Incremental Revolving LoansLoan Lender”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with to whom the Borrower Representative proposes any portion of such Incremental Revolving FacilityCommitments be allocated and the amounts of such allocations and any Lender approached to provide all or a portion of the Incremental Revolving Commitments may elect or decline, the “in its sole discretion, to provide an Incremental Facilities”), Revolving Commitment. Such Incremental Revolving Commitments shall become effective as of such Increased Amount Date; provided that (i1) the aggregate principal amount no Default or Event of the Incremental Facilities Default shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) exist on a pro forma basis such Increased Amount Date before or after giving effect to the provision of such Incremental Facility, Revolving Commitments; (y2) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds Borrowers shall be given pro forma effect in compliance with the financial covenant set forth in Section 6.07 (assuming for this purpose that such calculation)financial covenant is in effect) as of the last day of the most recently ended fiscal quarter four Fiscal Quarter period for which financial statements have been are available), after giving effect to such Incremental Revolving Commitments; (3) the Incremental Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower Representative, the Incremental Revolving Loan Lender and the Administrative Agent, and each of which shall be recorded in the Revolving Commitment Register, and each Incremental Revolving Loan Lender shall be subject to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants requirements set forth in Section 7.1 after giving effect to 2.32(c); (4) the incurrence of such Incremental Facility, such compliance Borrower Representative shall make (or cause to be determined made) any payments required pursuant to Section 2.32(c) in connection with the Incremental Revolving Commitments; and (x5) on the basis Borrower Representative shall deliver or cause to be delivered any legal opinions or other documents (including modifications of the financial information most recently delivered to Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent and in connection with any such transaction. Notwithstanding anything to the Lenders pursuant to contrary in this Section 6.1(a) 2.34 or (b) as though such incurrence had been consummated as in any other provision of the first day of the fiscal period covered therebyany Loan Document, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding if the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and Revolving Commitments are intended to be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used applied to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower Investment and the Lenders providing such Incremental Facility. The terms of Revolving Commitments so agree, the applicable Incremental Facility availability thereof shall (x) not be as subject to the requirements set forth in the applicable Incremental Facility Amendment; provided that clauses (i1) other than amortization or (with respect to any Incremental Term Facility), pricing 2) above or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and clauses (ii) no Incremental Revolving Facility shall have any amortization. In the case or (iii) of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder Section 3.02(a) and/or (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (iy) be subject to customary “SunGard” or “certain funds” conditionality. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the consent (not to be unreasonably withheld or delayed) satisfaction of the Administrative Agentforegoing terms and conditions, (a) each of the Issuing Lender applicable Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the applicable Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing applicable Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the extent addition of such consent would Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) deemed for all purposes a Revolving Commitment and (ii) become a Lender under this Agreement pursuant to an amendment each Loan made thereunder (an “Incremental Facility AmendmentRevolving Loan”) to this Agreement andshall be deemed, as appropriatefor all purposes, the other a Revolving Loan Documents, executed by the Borrower, and (c) each Additional Incremental Revolving Loan Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders and (z) in the case of each notice to any applicable Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Incremental Facility Amendment. No Lender Revolving Loans shall be obligated identical to provide any the Revolving Loans; provided that if the Incremental FacilityRevolving Loan Lenders require an interest rate in excess of the interest rate or commitment fees in excess of the commitment fees then applicable to the Revolving Loans or Revolving Commitments, unless it so agreesthe interest rate on the Revolving Loans and the commitment fees on the Revolving Commitments shall be increased to equal such required rate without further consent of the affected Lenders. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, Agent to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)2.34.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Fairmount Santrol Holdings Inc.)
Incremental Facility. (a) The Borrower may Subject to all the terms of this Agreement and so long as no Default exists and is then continuing, from time to time amend this on and after the Agreement in order to provide to Date, the Borrower may incur additional Indebtedness hereunder in the form of a revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility credit or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder facility (eachan "Incremental Facility", an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facilityall such facilities, the “"Incremental Facilities”)") in an aggregate principal amount that, provided that (i) when added to the aggregate principal amount of the any previously extended Incremental Facilities shall Facilities, does not exceed $200,000,000, plus additional amounts 500,000,000. Each Incremental Facility shall (i) share in the Collateral to the same extent as the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00other Loans, (ii) be entitled to prepayments pursuant to Section 2.8 to the same extent as the other Loans, and (iii) not be secured by any collateral other than the Collateral or guaranteed by any Person other than pursuant to the Loan Documents. The interest rate, commitment fee rate, amortization schedule and maturity date for each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect as agreed upon between any Lenders agreeing to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming provide such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds Borrower; provided, however, that the Weighted Average Life to Maturity of such Incremental Facility shall in calculating such leverage ratio (it being understood thatno event be shorter than the Weighted Average Life to Maturity of, if applicablecollectively, the use of Revolving A Loans (which for such proceeds purposes shall be given pro forma effect deemed outstanding in the amount of the then applicable Revolving A Commitment), the Revolving B Loans (which for such calculation) purposes shall be deemed outstanding in the amount of the then applicable Revolving B Commitment until the Conversion Date and thereafter the actual amount of the Revolving B Loans outstanding), the Term A Loans and the Term B Loans on a combined basis (iv) at the time and after giving effect to the incurrence of excluding any other Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition). The Loans lenders and Commitments in respect of any the loans under each Incremental Facility will be "Lenders" and "Loans" for all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under purposes of this Agreement and the other Loan Documents. Each The Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement documented pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender Person providing a commitment to the Incremental Facility and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment Such amendment may, without the consent of any other Lenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).this
Appears in 1 contract
Incremental Facility. (a) The A. Borrower may shall have the right, from time to time amend this Agreement in order on or before the Incremental Term Loan Commitment Termination Date, to provide to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility” and loans pursuant thereto “Incremental Revolving Loans”) and request additional term loan facilities hereunder loans (each, each an “Incremental Term FacilityLoan,” and loans pursuant thereto and, collectively the “Incremental Term Loans”; together with any ,” and “Term Loans” shall thereafter be deemed to include all Incremental Revolving Facility, Term Loans) pursuant to an incremental facility (the “Incremental FacilitiesFacility”); provided, provided that (i) at the aggregate principal amount of the time any Incremental Facilities shall not exceed $200,000,000, plus additional amounts Term Loan is made pursuant to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (ya) assuming such Incremental Facility is fully drawn as no Event of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) Default or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Potential Event of Default shall have occurred and be continuingcontinuing or result from the making of such Incremental Term Loan; provided that(b) Borrower shall have delivered to Administrative Agent (1) a Compliance Certificate certifying, among other things, that Borrower is, as of the date of such Incremental Term Loan and after giving effect to both such Incremental Term Loan and the Permitted Acquisition, if any, for which the proceeds of such Incremental Term Loan will be used, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis compliance with all other applicable Obligations under terms and conditions contained in this Agreement and the other Loan Documents. Each , including the financial covenants set forth in this Agreement, accompanied by a written calculation, in detail satisfactory to Administrative Agent, of such financial covenant compliance and (2) such other information as may be required by Administrative Agent or any Lender; (c) the principal amount of the requested Incremental Term Facility must Loan shall be at least Ten Million Dollars ($10,000,000) and the aggregate original principal amount of all Incremental Term Loans outstanding do not exceed an amount equal to the sum of Seventy-Five Million Dollars ($75,000,000) minus the original principal amount of the Incremental Term Loan being requested, and Borrower shall be limited to five (5) Incremental Term Loan requests; (d) each Incremental Term Loan shall constitute a Term Loan and (i) rank pari passu in right of payment and of security with the other Term Loans, and (ii) mature and amortize in a manner reasonably acceptable to the Incremental Term Loan lenders, but in any event have a an average weighted average life equal to maturity which is the same or longer than the Term Loans and mature on a date no earlier than June 30, 2011; provided, that the applicable interest rates may differ from the then remaining weighted average life to maturity existing Term Loans; and (e) the proceeds of the Term Facility (provided that any Incremental Term Loan may be used for general corporate purposes, including the purpose of consummating a Permitted Acquisition. Notwithstanding anything to the contrary contained herein, all Credit Parties hereby acknowledge and agree that Lenders are not making a commitment herein to make the Incremental Facility may amortize in an amount available to Borrower. Until such that it is fungible with time as the Incremental Term Loan Facility) and a final maturity no earlier than lenders agree to make the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies available to Borrower, the Incremental Facility is and shall remain uncommitted.
B. Borrower shall provide notice to Administrative Agent and each Lender of its desire for an Incremental Term Loan (a lesser treatment“Notice of Incremental Term Loan Request”), the proposed amount thereof, and specifying the time period within which each Lender is requested to respond (which shall in no event be less than twenty-one (21) days from the date of delivery of such notice to the Lenders). Each Incremental Revolving Facility Lender shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin option (including all upfront or similar fees or original issue discount payable in its sole and complete discretion) to all Lenders providing subscribe for its Pro Rata Share of such Incremental Facility and any Eurodollar or ABR floor applicable to such proposed loan under the Incremental Facility) relating to ; provided, however, that if any Lender has not subscribed for its Pro Rata Share of such proposed Incremental Facility Term Loan, then Administrative Agent shall be on permitted to secure new lenders in respect of such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. Pro Rata Share.
C. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Loan pursuant to the Incremental Facility shall have the same terms as the Term Facility or the Revolving Facilityincluding, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunderwithout limitation, the manner in which such increase is implemented interest shall be reasonably satisfactory to determined, the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect amount and timing of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) andfees, if not already a Lenderany, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders payable with respect to such Incremental Facility Amendment. No Lender Term Loan and the amortization schedule relating to such Incremental Term Loan shall be obligated set forth in a supplement to provide any this Agreement (a “Supplement”) in form and substance reasonably satisfactory to Administrative Agent, executed by Administrative Agent, the Incremental FacilityTerm Loan lenders and each Credit Party, unless it so agreesprovided that the effect of such Supplement, together with all other Supplements made, is not more binding or restrictive on Borrower or beneficial to the Incremental Term Loan lenders (other than with respect to pricing) than the Term Loans are to existing Lenders and Borrower, as applicable. Commitments in respect of any Incremental Facility Each Credit Party shall become Commitments under this Agreement. An Incremental Facility Amendment mayexecute and deliver to Administrative Agent such assumptions, without the consent of any guarantees, security documents, opinions and other Lenders, effect such amendments to any Loan Documents documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to reasonably required by the Administrative Agent and Lenders and obligations shall be evidenced by promissory notes substantially in the Additional Lenders, be subject to the satisfaction on the date thereof form of Exhibit X (each, an “Incremental Facility Closing DateTerm Loan Note” and, collectively, the “Incremental Term Loan Notes”) that at the time ), and after giving effect to the incurrence of any Incremental Facility Borrower shall execute and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of deliver an Incremental Term Facility is used Loan Note to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an each Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included Loan lender in the acquisition agreement or other document having similar effect related to principal amount of such Limited Conditionality Acquisition that are material to the interests lender’s Pro Rata Share of the Lenders and only Incremental Term Loan being made. Each Incremental Term Loan Note shall represent the obligation of Borrower to pay the extent that amount of the Borrower or its applicable Subsidiary has Incremental Term Loan advanced by such lender, together with interest thereon as prescribed in the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)applicable Supplement.
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Incremental Facility. Company may by written notice to Administrative Agent elect (aone time only) The Borrower may from time to time amend this Agreement request the establishment of new term loan commitments (the "NEW TERM LOAN COMMITMENTS"), by an amount not in order excess of $65,000,000. Each such notice shall specify (A) the date (the "INCREASED AMOUNT DATE") on which Company proposes that the New Term Loan Commitments shall be effective, which shall be a date (i) not less than 10 Business Days after the date on which such notice is delivered to provide Administrative Agent and (ii) prior to the Borrower additional revolving loan facilities and/or increased revolving commitments in respect second anniversary of the Revolving Facility Closing Date, and (B) the identity of each Lender or any other existing revolving facility hereunder Person that is an Eligible Assignee (each, an “Incremental Revolving Facility” a "NEW TERM LOAN LENDER") to whom Company proposes a portion of such New Term Loan Commitments be allocated and loans pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (eachthe amounts of such allocations; CREDIT AND GUARANTY AGREEMENT 434546.21-New York Server 3A - MSW provided that any Lender approached to provide all or a portion of the New Term Loan Commitments may elect or decline, an “Incremental in its sole discretion, to provide a New Term Facility” and loans pursuant thereto “Incremental Loan Commitment. Such New Term Loans”Loan Commitments shall become effective, as of the Increased Amount Date; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i1) no Default or Event of Default shall exist on the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts Increased Amount Date before or after giving effect to the extent the Consolidated First Lien Net Leverage Ratio such New Term Loan Commitments; (determined (x2) on a pro forma basis both before and after giving effect to the provision making of such Incremental Facilityany New Term Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (y3) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio the New Term Loans shall immediately be used within one (it being understood that1) Business Day after the Increased Amount Date, if applicable, together with (to the use of such proceeds shall be given extent after giving pro forma effect in to such calculation)) Cash payment as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to month, Availability is at least $40,000,000) other Cash of the Administrative Agent Company or the PHCMI Group Members, solely to, repay the then outstanding Omega Loan and related interest, fees and expenses in full and the Lenders Company shall comply with its obligations in the respect of the PHCMI Group Members pursuant to Section 6.1(a5.10; (4) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower Company and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Section 7.1 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent New Term Loan Commitments and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds thereof; (5) the New Term Loan Commitments shall be given pro forma effect effected pursuant to one or more Joinder Agreements executed and delivered by Company, Administrative Agent, and each New Term Loan Lender and each of which shall be recorded in such calculation) the Register and shall be subject to the requirements set forth in Section 2.20(c); and (iv6) at Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. On the time and after giving effect Increased Amount Date on which the New Term Loan Commitments are effective, subject to the incurrence satisfaction of any Incremental Facilitythe foregoing terms and conditions, no Event of Default (i) each New Term Loan Lender shall have occurred make a Loan to Company (a "NEW TERM LOAN") in an amount equal to its New Term Loan Commitment, and be continuing; provided that, in the event that any tranche of an Incremental (ii) each New Term Facility is used to finance Loan Lender shall become a Limited Conditionality Acquisition and Lender hereunder with respect to the extent New Term Loan Commitment and the Additional New Term Loans made pursuant thereto. Administrative Agent shall notify Lenders participating in such tranche promptly upon receipt of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time Company's notice of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans Increased Amount Date and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement the New Term Loan Commitments and the other New Term Loan Documents that are secured by Lenders. The terms and provisions of the Collateral New Term Loans and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and New Term Loan Commitments shall be, except as otherwise set forth herein or in the other Loan DocumentsJoinder Agreement, identical to the Tranche B Term Loans. Each Incremental Term Facility must have a weighted average life to maturity which is In any event (i) the same or longer than the then remaining weighted average life to maturity of the New Term Facility Loans shall be no shorter than the weighted average life to maturity of the Tranche B Terms Loans, (provided ii) the applicable New Term Loan Maturity Date shall be no shorter than the final maturity of the Tranche B Term Loans, (iii) the rate of interest applicable to the New Term Loans shall be determined by Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, in the event that: (i) the interest rate margin applicable to the New Term Loans is greater than that any Incremental applicable to the Tranche B Term Facility may amortize Loans by more than 0.25% per annum, then (x) the interest rate margins applicable to the Tranche B Term Loans set out in Section 2.8(a)(iii) shall be increased to an amount such that it is fungible with equal to the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights interest CREDIT AND GUARANTY AGREEMENT 434546.21-New York Server 3A - MSW rate margin on the same basis as New Term Loans less 0.25% per annum, and (y) if the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all aggregate amount of any original issue discount and any upfront or similar fees or (excluding arrangement fees) paid to new Lenders on the New Term Loans is greater than that on the Tranche B Term Loans, the Company shall pay such fees and/or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the existing Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental having Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving FacilityLoan Exposure, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to determined by the Administrative Agent in order to ratably increase the aggregate original issue discount and such upfront fees on the Additional Lenders, be subject Tranche B Term Loans to that of the New Term Loans; or (ii) the interest rate margin applicable to the satisfaction New Term Loans is no greater than that applicable to the Tranche B Term Loans then, if the aggregate amount of any original issue discount and any upfront or similar fees (excluding arrangement fees) paid to new Lenders on the date thereof (eachNew Term Loans is ratably greater than that on the Tranche B Term Loans by more than 0.25%, an “Incremental Facility Closing Date”) that at the time and after giving effect Company shall pay such fees and/or original issue discount to the incurrence existing Lenders having Term Loan Exposure, as determined by the Administrative Agent in order to ratably increase the aggregate original issue discount and such upfront fees on the Tranche B Term Loans to that of the New Term Loans less 0.25% per annum; or (iii) the interest rate margin applicable to the New Term Loans is greater than that applicable to the Tranche B Term Loans by less than 0.25% per annum, then (x) the interest rate margins applicable to the Tranche B Term Loans set out in Section 2.8(a)(iii) shall not be increased, and (y) the aggregate amount of any Incremental Facility original issue discount and any upfront or similar fees (excluding arrangement fees) paid to new Lenders on the use of proceeds thereof, each of New Term Loans shall ratably be no greater than the representations aggregate original issue discount and warranties made by any Loan Party in or pursuant to such upfront fees on the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Tranche B Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments)Loans.
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Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Incremental Facility. (a) The So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time and from time to time amend after the Restatement Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in order to provide to this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving FacilityCommitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and loans pursuant thereto “together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving FacilityCommitments, the “Incremental FacilitiesCommitments”), provided that that, (i) the aggregate principal amount of the Incremental Facilities Commitments permitted pursuant to this subsection 2.5 shall not exceed $200,000,000exceed, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facility, no Event of Default shall have occurred Facilities Amount” and be continuing; provided that, in the event that (ii) if any tranche portion of an Incremental Term Facility Commitment is used to finance a Limited Conditionality Acquisition and to be incurred in reliance on clause (i) of the extent the Additional Lenders participating in such tranche definition of an “Maximum Incremental Term Facility agreeFacilities Amount”, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility Borrower shall have delivered a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory certificate to the Administrative Agent, certifying compliance with the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as financial test set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortizationclause. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments Any loans made in respect of any such Incremental Revolving Facility, Extended Revolving Commitment (other than Supplemental Term Loan Commitments and any original Supplemental Revolving Commitments) that have more than four different maturity datesshall be made by creating a new Tranche.
(ab) An Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall Commitments. The Incremental Commitments (or any portion thereof) may be made available by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder upon delivery to or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the Issuing provisions of this subsection 2.5. Upon effectiveness of the Lender (to Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the extent such consent would be required with respect to an assignment term loan made pursuant to such Additional Lender Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to Section 10.6such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and (iiSupplemental Revolving Commitments) shall become a Lender commitments under this Agreement pursuant to an amendment (an “Incremental Facility Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, Borrower and each Additional Lender and the Administrative Agent. No applicable Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this AgreementLender. An Incremental Facility Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this Section subsection 2.5 and/or (including y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for voting provisions applicable (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2020 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the Additional Lendersextent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2020 Term Loans pursuant to subsection 3.4(c). The effectiveness of any , on more than a ratable basis with the Initial Term Loans, Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof B-2019 Term Loans or Incremental B-2020 Term Loans (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the incurrence of any Incremental Facility maturity date and the use weighted average life to maturity of proceeds thereofsuch Incremental Term Loan Commitments shall be no earlier than or shorter than, each as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the representations Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (iv) the interest rate margins and warranties (subject to clause (iii) above) amortization schedule applicable to the loans made by any Loan Party in or pursuant to the Loan Documents Incremental Commitments shall be true determined by the Borrower and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier dateapplicable Incremental Lenders; provided that, that in the event that the applicable interest rate margins for any tranche of an term loans Incurred by the Borrower under any Incremental Term Facility is used Loan Commitment made on or prior to finance a Limited Conditionality Acquisition and the 12-month anniversary of the Restatement Effective Date are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Additional Lenders participating in applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such tranche of an Incremental Term Facility agreeLoan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the foregoing amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be limited to customary “specified representations” and those representations included determined on a weighted average basis); (B) any arrangement, structuring or fees payable in connection with the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition Incremental Term Loans that are material not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; and (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the interests Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Lenders and only Applicable Margin for the Initial Term Loans shall be required, to the extent that an increase in the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, interest rate floor for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).Initial Term Loans would cause an increase in the interest rate then in
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)