Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the 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 such increase referred to herein, as an “Energy Hedging Incremental Loan”); 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 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07). (c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used. (d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Incremental Facility. (a) From The Borrower and any one or more Banks (including any New Bank (as defined below)) may from time to time upon at least 30 days’ prior written notice before the Maturity Date agree that such Banks shall make, obtain or increase the amount of their Incremental Term Loans by executing and delivering to the Administrative Agent an Increased Facility Agent Activation Notice specifying (i) the amount of such increase, (ii) the applicable Increased Facility Closing Date, (iii) the applicable maturity date and the amortization schedule for such Incremental Term Loans, in each case, which notice shall be promptly transmitted comply with Section 2.1(d), and (iv) the Applicable Margin for such Incremental Term Loans; provided, that if the total yield (calculated for both the Incremental Term Loans and the existing Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Facility Borrower)) in respect of any Incremental Term Loans exceeds the total yield for the existing 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 each of the Lendersmaturity), the Borrower Applicable Margin for the existing Loans shall have be increased so that the right, subject to total yield in respect of such Incremental Term Loans is not greater than 50 basis points higher than the terms and conditions set forth below, to increase total yield for the aggregate amount of existing Loans. Notwithstanding the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided thatforegoing, (i) at the time Administrative Agent shall have received (A) additional new assets as Collateral and Covered Assets, consisting of any assets that are of the type included in the Collateral and Covered Assets, and in the manner and pursuant to such request documentation provided, on the Closing Date and upon otherwise reasonably acceptable to the effectiveness Administrative Agent and the increasing Bank or New Bank, as applicable, such that the Collateral Coverage Ratio as of any such Energy Hedging Incremental Loanthe Increased Facility Closing Date, no Default or Event of Default shall exist or would exist after giving pro forma effect theretoto such addition, shall be equal to or greater than the Collateral Coverage Ratio as of the last Collateral Report, which shall have been in all cases equal to or greater than 1.25 to 1.00 and (B) an updated Collateral and Covered Asset List to reflect such additional new assets, and (ii) such without the consent of the Administrative Agent, each increase must effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and 10,000,000. No Bank shall have any obligation to participate in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment shall not be increased any increase described in this paragraph unless it agrees to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase do so in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loanssole discretion.
(b) Any such increase in the Energy Hedging Commitment shall applyadditional bank, 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) the creation of a new Energy Hedging Commitment to one or more bank financial institution or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided thatentity which, any such Additional Lender (A) must be approved by with the consent of the Borrower and the Administrative Agent, elects to become a “Bank” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Bank Supplement (each, a “New Bank Supplement”), substantially in the form of Exhibit M-2, whereupon such bank, financial institution or other entity (a “New Bank”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, 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 evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject furnished to the terms and conditions set forth herein including any Applicable Marginother parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Istar Inc.)
Incremental Facility. (a) From time to time upon at least 30 days’ prior written The Borrower may, on or after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request one tranche of new Indebtedness (either in the Borrower shall have form of second lien subordinated term loans or second lien secured subordinated notes) in a separate facility from the right, subject to outstanding Term Loans (the terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanFacility”); , provided that, that (i) both at the time of any such request and upon after giving effect to the effectiveness and funding of any such Energy Hedging the Incremental LoanFacility, no Default or Event of Default shall exist and at the time that any such Incremental Facility is made or would exist effected (and after giving effect thereto), the conditions in Section 5.15 shall be satisfied and (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 Energy Hedging Commitment Final Order Entry Date shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loanshave occurred.
(b) Any such increase in The aggregate principal amount of all Indebtedness under the Energy Hedging Commitment Incremental Facility shall apply, at not exceed $3,000,000,000 (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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional LenderIncremental Limit”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Indebtedness under the Incremental Facility (i) shall rank junior in right of payment and 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 for in the proviso in the definition of “Maturity Date” whether or not such extensions have actually become effective) and shall require no scheduled amortization, (iii) shall have interest rates, interest margins, rate floors, fees, funding discounts and premiums determined by the Borrower shall use and the proceeds lenders thereof, (iv) the exceptions and “baskets” to the covenants and events of default under the Incremental Facility will be increased from the corresponding exceptions and “baskets” herein in a manner reasonably satisfactory to the Administrative Agent, and (v) may have terms and conditions different from those of the Energy Hedging Incremental Loans solely for Term Loans; provided that, except with respect to the purpose for which differences set forth in clauses (ii) and (iii) above or with respect to immaterial terms, any differences must be reasonably acceptable to the proceeds of the Energy Hedging Loans may be usedAdministrative Agent.
(d) Except as otherwise 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 incurrence of the Incremental Facility.
(f) The notice from the Borrower pursuant to this Section 2.13 shall set forth in this Section 2.11, all Energy Hedging the requested amount and proposed terms of the Incremental Loans Facility. The Incremental Facility may be provided by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of the Incremental Facility and (ii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide the Incremental Facility).
(g) The effectiveness and borrowing of the Incremental Facility shall be subject to the terms satisfaction on the date thereof of the conditions in Section 5.15 and such other conditions set forth herein as the parties thereto shall agree, including the execution of an intercreditor agreement acceptable to the Administrative Agent and the Lenders under the Incremental Facility, which intercreditor agreement shall provide that until the 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 other actions related to the Collateral, and that the secured parties under the Incremental Facility will not be entitled to take any Applicable Marginaction with respect to the Collateral (other than limited actions to preserve and protect the liens securing the Incremental Facility that do not impair the liens securing the Obligations).
Appears in 1 contract
Incremental Facility. (a) From Each Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving facilities or letter of credit facilities or an increase in 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); , provided that, that (i) at the time of any such request and upon after the effectiveness of any such Energy Hedging Incremental LoanAmendment referred to below, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Company shall be in compliance with the covenants contained in Section 7.1 determined on a minimum 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 amount of the Incremental Facilities shall not exceed $300,000,000 at any one time outstanding.
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Facility shall not mature earlier than the Revolving Termination Date or have a weighted average life (if applicable and in integral multiples other than for nominal amortization of $5,000,000 above 1% or less of the principal amount of such amountIncremental Facility per year) which is shorter than the then remaining weighted average life of the Revolving Facility, (iii) the aggregate Energy Hedging Commitment terms and conditions applicable to any Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the preceding clause (ii)) shall be the same as those applicable to the Revolving Facility other than such terms and conditions which do not be increased apply or relate to an amount greater than any previously existing Facility or other terms reasonably satisfactory to the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersAdministrative Agent, (iviv)(A) no individual Lender’s Commitment may the Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be increased without 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 Lender’s written consent, Incremental Term Facility and (v) the Borrower any Incremental Facility shall execute otherwise be on terms and deliver a Note or Notes as are necessary and requested pursuant to documentation to be determined by the applicable Lenders Company and the Persons willing to reflect provide such Incremental Facility, provided that (1) to the increase extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums) and (2) in the Energy Hedging Commitmentcase of Incremental Term Facilities, if the Applicable Margin (viwhich term for purposes of this Section 2.19 shall include any original issue discount (“OID”) Schedule 2.01 or upfront fees (which shall be amended deemed to reflect constitute like amounts of OID) payable by the revised Commitments Borrowers to the lenders under, and pricing floors applicable to, any Incremental Term 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 Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitmentapplicable Incremental Amendment, the Borrower will prepay (provided that any Applicable Margin relating to such prepayment existing Incremental Term Facility shall be subject adjusted to equal the Applicable Margin relating to such subsequent Incremental Term Facility minus 0.25% per annum. Each notice from the Company pursuant to this Section 2.03), one or more existing Energy Hedging Loans in an 2.19 shall set forth the requested amount necessary such that after giving effect to the increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share and proposed terms of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase in relevant Incremental Facility and 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) the creation of a new Energy Hedging Commitment to one or more bank Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Company (any such other bank or other financial institution or fund being called an “Additional Lender”); , provided that, any such Additional Lender that the Administrative Agent shall have consented (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.6 for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the applicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.1(e) hereof. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.19. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the 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 such other conditions as the parties thereto shall agree. The Borrower shall Borrowers will use the proceeds of the Energy Hedging Incremental Loans solely 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 purpose for which Lenders hereby agree that the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Section 2.11, all Energy Hedging Incremental Loans Agreement shall be subject not apply to the terms and conditions set forth herein including any Applicable Margintransactions effected pursuant to this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent 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 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); provided that, that (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanrequest, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Article VI determined on a minimum 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 the Available Incremental Amount (as determined as of the date of incurrence of any applicable Incremental Facility). Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 and 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 integral multiples 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 $5,000,000 above greater than 5% of the original principal amount of such amountIncremental 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 aggregate Energy Hedging Commitment Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall not be increased the same as those applicable to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersRevolving Facility, (iv) no individual Lender’s Commitment may the Applicable Margin relating to any Incremental Term Facility shall be increased without determined by the Borrower and the Lenders providing such Lender’s written consent, Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders Persons willing to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any provide 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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing LendersIncremental Term Facility; provided that each Energy Hedging Issuing Bank to the extent such terms and any Lender whose Energy Hedging Commitment is documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being increased must consent in writing thereto and/or (y) agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the creation Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of a new Energy Hedging Commitment to one or more bank the relevant Incremental Facility and the Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); provided thatthat the Administrative Agent, any such Additional Lender (A) must be approved by the Borrower Swingline Lender, and the Facility Agent Issuing Bank shall have consented (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.4 for an assignment of Loans to such Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.2(b) hereof. The Incremental Amendment may, without need for the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.23. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all references to the 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 shall will use the proceeds of the Energy Hedging 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 any Incremental Revolving Facility, each Lender’s and each Additional Lender’s, if any, Pro Rata Share of each of the Revolving Commitments and the Revolving Loans solely 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 furtherance of the foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be deemed to have irrevocably sold, transferred, conveyed and assigned to each other Lender and each other Additional Lender, if any (and without, for the purpose for which avoidance of doubt, increasing or decreasing the proceeds aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall hold a Pro Rata Share of each of the Energy Hedging Revolving Commitments and Revolving Loans may be usedequal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) From Subject to the conditions set forth in this Section 2.15(a), from time to time upon at least 30 days’ prior written notice following the Restatement Date, Lenders may elect to make additional loans (each an “Incremental Loan”) in an aggregate principal amount not to exceed $40,000,000.00 available to Borrowers (including the Facility Agent applicable ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) in the amount requested by Borrower Representative for the acquisition of one or more Properties that shall secure such Incremental Loan and the other Obligations (which notice each such Property, a “Joinder Project”), for payment of associated closing costs in connection therewith and for establishing such reserves (such as reserves to fund immediate repairs) as Lenders may require. Any and all Incremental Loans shall rank pari passu with each other and all other advances of the Term Loan, shall constitute part of the Term Loan, shall be promptly transmitted secured by the Facility Agent to each of the Lenders)Mortgages and, for the Borrower avoidance of doubt, shall be due and payable in full on the Scheduled Maturity Date. The decision of any Lender to provide an Incremental Loan shall be at such ▇▇▇▇▇▇’s sole discretion, shall be made in writing, and shall be subject to receipt by such Lender of all required credit approvals. No Lender shall have the right, an obligation to provide or advance any Incremental Loan.
(b) The obligation of Lenders to fund an Incremental Loan shall be subject to the terms and conditions set forth below, to increase the aggregate amount satisfaction of the Energy Hedging Commitment (any following conditions and such increase referred to herein, as an “Energy Hedging other conditions that may be imposed by Administrative Agent or the Lenders at the time the request for the Incremental Loan”); provided that, Loan is made:
(i) at At least forty-five (45) days prior to the time desired funding date of any such request and upon the effectiveness of any such Energy Hedging applicable Incremental Loan, Borrower Representative shall have delivered a written request to Administrative Agent requesting disbursement of such Incremental Loan;
(ii) As of the date on which the notice described in clause (a) above is made, and as of the date on which the requested Incremental Loan is made, both before and after giving pro forma effect thereto (1) no Default or Event of Default shall exist have occurred and be continuing, and no Material Adverse Effect shall have occurred or would exist after giving effect theretobe continuing with respect to Borrowers, the Guarantor, the Properties or the Term Loan and (ii2) all representations and warranties with respect to the Joinder Borrower and the Joinder Project set forth in the Loan Agreement, the other Loan Documents, and the Environmental Indemnity Agreement are true and correct in all material respects (or, if any such increase must representation or warranty is, by its terms, qualified by concepts of materiality, such representation or warranty is true and correct in all respects) except that those that by their terms relate exclusively to a specific earlier date need only be true and correct in a minimum amount all material respects as of $50,000,000 and in integral multiples of $5,000,000 above such amount, earlier date;
(iii) the The aggregate 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 Majority LendersTerm Loan Commitments, as increased by the requested Incremental Loan, do not exceed $177,000,000.00;
(iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, The applicable Joinder Borrower is an Acceptable Entity approved by Lenders in their sole and absolute discretion;
(v) the Borrower shall execute The applicable Joinder Project is an Acceptable Project approved by ▇▇▇▇▇▇▇ in their sole and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, absolute discretion;
(vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the The requested Incremental Loan has been approved by Lenders in their sole and absolute discretion;
(vii) Borrowers and Guarantor have delivered to Administrative Agent the documents, and shall have satisfied all of the requirements, set forth in Section 5.1, and delivered all other reports, documents and agreements as would have been required if any Loans are outstanding at the time Joinder Borrower had been included as a Borrower on the Restatement Date and the Joinder Project had been included as a Property, on the Restatement Date, including a Title Policy and all required quality of an increase in earnings report, rent roll and lease diligence, tenant review, business due diligence, insurance review, flood compliance review, legal due diligence and other diligence deemed relevant by the Energy Hedging Commitment, Lenders;
(viii) The Borrowers (including the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03proposed ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to Guarantor, and any other parties thereto have executed and delivered the 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.Joinder Documents;
(bix) Any such increase Borrowers have (1) paid all fees required to be paid to Administrative Agent and Lenders in connection with the Energy Hedging Commitment shall applyrequested Incremental Loan and (2) reimbursed Administrative Agent and Lenders for their respective expenses incurred in connection with evaluating and/or making the requested Incremental Loan, at the option of the Borrower, to including reasonable legal fees and expenses; and
(x) Unless otherwise agreed by Lenders, the Energy Hedging Commitment of one requested Incremental Loan will be funded on 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided thatbefore August 7, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07)2028.
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent So long as no Event of Default under subsection 8(a) or (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)f) exists or would arise therefrom, the Borrower shall have the right, subject at any time and from time to time after the terms and conditions set forth belowClosing Date, (i) to increase request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanTerm Loan Commitments”); , and (ii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”) (together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) at either (x) after giving pro forma effect to any Incurrence or Discharge of Indebtedness on the time date the applicable Incremental Commitment Amendment (as defined below) becomes effective, the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00 (and the Borrower shall deliver a certificate, no later than two Business Days (or such shorter period as agreed between the Borrower and the Administrative Agent) prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00) or (y) the aggregate then outstanding principal amount of any such request the sum of all unutilized Incremental Commitments and Incremental Loans does not exceed $750 million, (ii) upon the effectiveness of any such Energy Hedging Incremental LoanCommitment Amendment (as defined below), no Default or Event of Default shall exist or would exist after giving effect thereto, (ii) such increase must have occurred and be in a minimum amount of $50,000,000 continuing and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging representations and warranties set forth in Section 4 shall be true and correct in all material respects on and as of the effective date of any Incremental Commitment Amendment (although any representations and warranties that expressly relate to a given date shall be required only to be true and correct in all material respects as of the respective date or the respective period, as the case may be). Any loans made in respect of any such Incremental Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver made by creating a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loansnew Tranche.
(b) Any such increase in Each request from the Energy Hedging Commitment Borrower pursuant to this subsection 2.5 shall apply, at set forth the option requested amount and proposed terms of the Borrower, to relevant Incremental Commitments. The Incremental Commitments (xor any portion thereof) the Energy Hedging Commitment of one may be made by any existing Lender or more existing Lenders; provided that each Energy Hedging Issuing Bank and by any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more other bank or other financial institution (any such other bank or other financial institution being called institution, an “Additional Lender”); provided that) subject, in the case of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or any affiliate of a Lender hereunder) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(c) Incremental Commitments shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5, provided, however, that (i) (A) must the Incremental Commitments will not be approved guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (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 Loans and (C) no Incremental Commitment Amendment may provide for (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) any mandatory prepayment provisions that do not also apply to the Term Loans on a pro rata basis, so long as any Term Loans are outstanding; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of such Incremental Commitments shall be no earlier than the Term Loan Maturity Date; (iv) the weighted average life to maturity of all Incremental Term Loans of any Tranche shall be no shorter than the weighted average life to maturity of the Term Loans; (v) interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Facility Agent (applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Term Loans by more than 50 basis points, then the Applicable Margin for the Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Term Loans is equal to the applicable interest rate margins for such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must become a Lender under this Agreement by execution and delivery of an Assignment and Assumption AgreementIncremental Term Loan Commitment minus 50 basis points; provided further that, in no event determining the applicable interest rate margins for the Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or at upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Term Loans or any time 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); (B) customary arrangement, commitment or amendment fees payable to any Borrower Affiliate of the Lead Arrangers (or Macquarie Affiliate be a Lender for any Energy Hedging their respective affiliates) in connection with the Term Loan Facility or to one or more arrangers (or their respective affiliates) in connection with the applicable Incremental Term Loans (including by means and any fee payable to any Additional Lender in lieu of assignment any portion of any such fee payable to any such arranger or participation pursuant affiliate thereof) shall be excluded; and (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to Section 10.07).
(c) The Borrower the Term Loans, such increased amount shall use be equated to the proceeds applicable interest rate margin for purposes of determining whether an increase to the Energy Hedging Incremental Loans solely Applicable Margin for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Term Loans shall be subject required, to the extent an increase in the interest rate floor for the Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities in a manner consistent with those provided by the original Facility pursuant to the provisions of subsection 10.1(a) as originally in effect; and (vii) the other terms and conditions set forth herein including any Applicable Margindocumentation 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.
Appears in 1 contract
Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent 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 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); provided that, that (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanrequest, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a minimum 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 $50,000,000 and 150,000,000. Each Incremental Facility shall be in integral multiples 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 $5,000,000 above greater than 5% or less of the original principal amount of such amountIncremental Term Facility per year, (iii) the aggregate Energy Hedging Applicable Margin, Commitment Fee Rate and the other terms and conditions applicable to any Incremental Revolving Facility shall not be increased the same as those applicable to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersRevolving Facility, (iv) no individual Lender’s Commitment may the Applicable Margin relating to any Incremental Term Facility shall be increased without determined by the Borrower and the Lenders providing such Lender’s written consent, Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders Persons willing to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any provide 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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing LendersIncremental Term Facility; provided that each Energy Hedging Issuing Bank to the extent such terms and any Lender whose Energy Hedging Commitment is documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being increased must consent in writing thereto and/or (y) agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the creation Borrower pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of a new Energy Hedging Commitment to one or more bank the relevant Incremental Facility and the Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); provided that, any such Additional Lender that the Administrative Agent shall have consented (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Additional Lender’s providing such Incremental Facility, if an Incremental Revolving Facility, if such consent would be required under Section 10.6 for an assignment of Loans to such Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
(c10.1(d) hereof. The Borrower shall use Incremental Amendment may, without need for the proceeds consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Energy Hedging Incremental Loans solely for Administrative Agent and the purpose for which Borrower, to effect the proceeds provisions of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin2.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to After the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)Effective Date, the Borrower shall will have the right, subject to without the terms and conditions set forth belowconsent of the Lenders, to increase establish a revolving credit facility under this Agreement (the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanFacility”); provided thatthat (a) after giving effect to the Incremental Facility, the outstanding principal amount of Loans outstanding under all portions of the Facility plus the commitments under the Incremental Facility (whether funded or not), shall not exceed $150,000,000, (ib) all representations and warranties set forth in Article III and the other Loan Documents must be true and correct in all material respects upon giving effect to the Incremental Facility and no Default shall have occurred or be continuing at either the time of any the request or the effective date of 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 theretoincrease, (iic) any such increase must be in a minimum amount of $50,000,000 25,000,000 and in integral multiples of $5,000,000 above such amountin excess thereof, (iii) the aggregate 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (viid) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 increase Incremental Facility, on a pro forma basis, the Total Debt to EBITDA Ratio will be no greater than 0.50 to 1.00 less than the level set forth in Section 6.1(b) for such Computation Period, and (e) the Borrower shall be in compliance on a pro forma basis with the covenant set forth in Section 6.1(a), in each case under this clause (e), as of the effective date of the Incremental Facility (assuming that the Incremental Facility is fully drawn). The Borrower shall offer, in consultation with the Administrative Agent, the Incremental Facility to the Lenders (but no Lender will have an obligation to commit to all or any portion of the Incremental Facility). If the Lenders are not willing to commit to the Incremental Facility, the Borrower may offer the Incremental Facility or any portion thereof to other third party financial institutions (which must be reasonably acceptable to the Administrative Agent); provided that such new third party institution must have a commitment of at least $15,000,000. The Incremental Facility shall be established on terms customary for transactions of its size and type and (i) shall contain representations and warranties, covenants, indemnification provisions, events of default and other material terms that are identical to the Facility (unless otherwise reasonably satisfactory to the Lenders), (ii) provide for any revolving lenders thereunder to be secured on a pari passu basis with the Lenders under the Facility, (iii) appoint the Administrative Agent as agent for the revolving lenders (whether or not the Administrative Agent, as Lender, is participating thereunder), and (iv) will rank pari passu in right of payment and with respect to security with the Facility and the borrower and guarantors of the Incremental Facility shall be the same as the Borrower and Guarantors with respect to the Facility. In connection with any Incremental Facility, the Borrower, the Administrative Agent and each applicable Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facility. Any Incremental Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as 51 Credit Agreement may be necessary or appropriate, in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share reasonable opinion of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase in the Energy Hedging Commitment shall apply, at the option of Administrative Agent and the Borrower, to implement the terms of the Incremental Facility on terms consistent with this Section (x) including amendments to permit accrued interest and fees to share ratably in the Energy Hedging Commitment benefits 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower this Agreement and the other Loan Documents and to include appropriately the Lenders holding such Incremental Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds determination of the Energy Hedging Incremental Loans solely Required Lenders on substantially the same basis as the Lenders prior to such inclusion). The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section (including, for the purpose for which the proceeds avoidance of the Energy Hedging Loans doubt, payment of any interest, fees or premium in respect of any Incremental Facility on such terms as may be used.
(d) Except as otherwise set forth in the relevant Incremental Amendment) and hereby waive the requirements of any provision of this Section 2.11, all Energy Hedging Agreement or any other Loan Document that may otherwise prohibit any such Incremental Loans shall be subject to the terms and conditions set forth herein including Facility or any Applicable Marginother transaction contemplated by this Section.
Appears in 1 contract
Sources: Credit Agreement (Formfactor Inc)
Incremental Facility. (a) From The Company may from time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each third anniversary of the LendersClosing Date amend this Agreement in order to provide to the Company additional revolving loan facilities (each, an "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase provided that (i) the aggregate principal amount of the Energy Hedging Commitment Incremental Facilities shall not exceed $400,000,000 and (any such increase referred ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the average life of the Revolving Credit Facility, Tranche A Term Loan Facility and Tranche B Term Loan Facility taken as a whole and a final maturity of at least six months longer than the final maturity date of the Tranche B Term Loan Facility. Incremental Facilities will be entitled to hereinprepayments and voting rights on the same basis as comparable Facilities unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, as an “Energy Hedging Incremental Loan”); provided that, (i) at after giving effect thereto and the time use of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanproceeds 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 PRO FORMA basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made pursuant to such Incremental Facility and the Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of Incremental Facilities may be used only for the purposes specified in subsections 4.3 and 7.
(b) An Incremental Facility shall exist or would exist after giving effect theretobe made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Company and the Administrative Agent) identified as "Incremental Lenders" therein who have executed such Incremental Facility Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amountthe applicable Incremental Facility Effective Date, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging applicable Incremental Facility Amount without the prior written consent of the Majority LendersMaturity Date, (iv) no individual Lender’s Commitment may be increased without the amortization schedule or revolving credit period, as applicable, applicable to such Lender’s written consentIncremental Facility, (v) the Borrower shall execute whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and deliver a Note or Notes are entitled to share in mandatory prepayments as are necessary specified in subsection 8.6 and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 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 Credit Facility, the commitment fee therefor, and shall be amended otherwise duly completed. Each Incremental Lender that is a signatory to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentIncremental Facility Activation Notice severally agrees, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including of this Agreement, to make Incremental Loans to the Company on the date or during the periods specified in such Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be construed to obligate any Applicable MarginLender not party to such Incremental Facility Activation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice Subject to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)terms and conditions set forth herein, the Borrower shall have the right, subject 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 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 such Incremental Facility is made available; provided that (i) such Incremental Facility shall mature no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of the Incremental Facility shall be longer than or substantially similar to the weighted average life to maturity of the Term Loan, (c) the interest rate margin applicable to such Incremental Facility 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 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, (f) the proceeds of such Incremental Facility will be used for purposes consistent with Section 3.11 hereof, (g) the conditions to increase Extensions of Credit in Section 4.2 shall have been satisfied, (h) the aggregate amount of Administrative Agent and the Energy Hedging Commitment (Lenders shall 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 increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental LoanFacility, no Default or Event of Default shall exist or would exist after giving effect thereto, (ii) such increase must have occurred and be in a minimum amount of $50,000,000 continuing and in integral multiples of $5,000,000 above such amount, (iii) the aggregate 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, that the Borrower will prepay be in pro forma compliance with the financial covenants set forth in Section 5.9 and (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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (xi) 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any Administrative Agent shall have received such other bank or other financial institution being called documentation as it may reasonably request, including without limitation, an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by opinion of counsel to the Borrower and organizational documents and resolutions from the Credit Parties, all in form and substance satisfactory to the Administrative Agent. Participation in the Incremental Facility hereunder shall be offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all or any portion of such Incremental Facility. If, upon the date that is fifteen Business Days after the existing Lenders are invited by the Administrative Agent (to participate in such approval not Incremental Facility, the amount of the Incremental Facility shall exceed the commitments that the existing Lenders are willing to be unreasonably withheld) provide with respect to the Incremental Facility, then the Borrower may invite other banks, financial institutions and each Energy Hedging Issuing Bank and (B) must become a Lender under 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 execution existing Lenders, provided that such other banks, financial institutions and delivery of an Assignment investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and Assumption Agreement; provided further thatthe Borrower may reasonably request. The Administrative Agent is authorized to enter into, 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 Section 10.07).
(c) The Borrower shall use the proceeds on behalf of the Energy Hedging Incremental Loans solely for Lenders, any amendment to this Agreement or any other Credit Document as may be necessary to incorporate the purpose for which the proceeds terms of the Energy Hedging Loans may be used.
(d) Except new Incremental Facility therein, solely to the extent such terms are consistent with the terms as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin2.5.
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Sources: Credit Agreement (Amedisys Inc)
Incremental Facility. (a) From time to time upon The Borrower may at least 30 days’ prior written any time, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request the Borrower shall have the right, subject to the terms and conditions set forth below, to increase the addition of a new tranche of term loans under this Agreement in an aggregate principal amount of up to $350,000,000 (all such loans, collectively, the Energy Hedging Commitment "Incremental Loans") pursuant to an additional term loan credit facility (any such increase referred to hereinthe "Incremental Facility"), as an “Energy Hedging Incremental Loan”); provided that, (i) that both at the time of any such request and upon the effectiveness of any such Energy Hedging the Incremental LoanFacility Amendment referred to below, (A) no Default or Event of Default shall exist or would exist exist, (B) the Borrower and its Subsidiaries are in compliance, on a pro forma basis after giving effect theretoto any borrowing under the Incremental Facility, with the covenants contained in Sections 6.13, 6.14, 6.15 and 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if any such borrowing had occurred on the first day of each relevant period for testing such compliance and (C) borrowings under the Incremental Facility will not require any Indebtedness (other than Incremental Loans) to be secured by any Collateral. The Incremental Loans (i) shall rank pari passu in right of payment and of security with the Revolving Loans and Term Loans, (ii) shall mature no earlier than the Tranche C Maturity Date (but may, subject to clause (iii) below, have nominal amortization and commitment reductions prior to such increase must date), (iii) shall not have a weighted average life that is shorter than that of the Tranche C Term Loans, and (iv) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Tranche C Term Loans (including with respect to mandatory and voluntary prepayments); provided that (a) the terms and conditions applicable to Incremental Loans maturing after the Tranche C Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche C Maturity Date and (b) subject to the provisions set forth below, Incremental Loans may be priced differently than the Term Loans and the Revolving Loans. Such notice shall set forth the requested amount of Incremental Loans, which shall be in a minimum principal amount of not less than $50,000,000 and 25,000,000. In the event that existing Lenders provide commitments in integral multiples of $5,000,000 above such amount, (iii) the an aggregate Energy Hedging Commitment shall not be increased to an amount greater less than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent total amount of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and Incremental Loans requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentBorrower, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), may arrange for one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank banks or other financial institution institutions (any such other bank or other financial institution being called an “"Additional Lender”); provided that, any such Additional Lender (A") must be approved by to extend commitments to provide Incremental Loans in an aggregate amount equal to the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must unsubscribed amount. 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 Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and delivery the Administrative Agent. The Incremental Facility Amendment may, without the consent of an Assignment any other Lenders, effect such amendments to this Agreement and Assumption Agreement; provided further thatthe other Loan Documents as may be necessary or appropriate, 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 Section 10.07).
(c) The Borrower shall use the proceeds opinion of the Energy Hedging Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans Facility Amendment shall be subject to the terms and satisfaction on the date thereof (the "Incremental Facility Closing Date") of each of the conditions set forth herein including in 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 Incremental Facility Closing Date). No Lender shall be obligated to provide any Applicable MarginIncremental Loans unless it so agrees. Incremental Loans will bear interest at rates at all times equal to the interest rate applicable to Tranche C Term Loans, plus or minus a spread that is fixed at the time such Incremental Loans are made, provided that such spread shall not exceed the spread on the Tranche C Term Loans by more than 0.25% per annum. The proceeds of Incremental Loans may be used for general corporate purposes, which may include repayment of all or a portion of one or more of the Additional Senior Subordinated Notes, the Existing Senior Subordinated Notes, the Holdings Senior Discount Debentures and Replacement Senior Subordinated Notes, in each case, in accordance with the terms hereof.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice Subject to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)terms and conditions set forth herein, the Borrower shall have the right, subject at any time and from time to time, to incur additional Indebtedness under this Credit Agreement in the form of one or more additional term loan facilities (each an “Incremental Facility”) by an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the 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 Loans on a pari passu basis, (b) the interest rate margin applicable to such Incremental Facility shall be the Applicable Percentage for the Tranche B Term Loan (c) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available (provided that (i) such Incremental Facility shall mature no earlier than the Tranche B Term Loan Maturity Date and (ii) no greater than 5% of the Incremental Facility shall amortize prior to the date that is one year before the Tranche B Term Loan Maturity Date), (d) any 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 comparable Loans, (e) 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, to increase the aggregate amount of the Energy Hedging Commitment (f) any such increase referred to herein, as an “Energy Hedging Incremental Loan”); 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 Facility shall exist or would exist after giving effect thereto, (ii) such increase must be in a minimum principal amount of $50,000,000 25,000,000 and in integral multiples of $5,000,000 above such amount1,000,000 in excess thereof, (iiig) the aggregate Energy Hedging Commitment shall not proceeds of any Additional Loan will be increased used to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lendersfinance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (vh) the Borrower conditions to Extensions of Credit in Section 4.2 shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders have been satisfied and (viii) if 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, after giving effect to any Loans are outstanding at the time of an increase in the Energy Hedging Commitmentsuch Incremental Facility, the Borrower will prepay (provided that be in compliance with the financial covenants set forth in Section 5.9. Participation in any such prepayment Incremental Facility hereunder shall be subject offered first to Section 2.03), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the 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) existing Lenders, but each such Lender shall have no obligation to provide all or any portion of outstanding Energy Hedging Loans.
(b) Any such increase in Incremental Facility. If the Energy Hedging Commitment shall apply, at the option amount 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved Incremental Facility requested by the Borrower Table of Contents shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, 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 such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Facility Borrower may reasonably request. The Administrative Agent (such approval not is authorized to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must become a Lender under this Agreement by execution and delivery of an Assignment and Assumption Agreement; provided further thatenter into, 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 Section 10.07).
(c) The Borrower shall use the proceeds on behalf of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans Lenders, any amendment to this Credit Agreement or any other Credit Document as may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject necessary to incorporate the terms and conditions set forth herein including of any Applicable Marginnew Incremental Facility therein.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower shall have the right, subject Subject to the terms and conditions set forth belowherein, the Parent Borrower shall have the right, at any time and from time to time 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 the form of an increase to the Revolving Committed Amount (each an "Incremental Facility") by an aggregate amount of up to $25,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the Energy Hedging Commitment (loans made under any such increase referred to herein, as Incremental Facility (each an “Energy Hedging Incremental "Additional Loan”); provided that") shall constitute Borrowers' Obligations and will be secured and guaranteed with the other Borrowers' Obligations on a pari passu basis, (ib) at the time of any such request Incremental Facility shall have the same terms (including interest rate and upon maturity date) as the effectiveness of existing Revolving Loans, (c) any such Energy Hedging Incremental Loan, no Default or Event Facility shall be entitled to the same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of Default shall exist or would exist after giving effect theretoprepayments on the same basis as the existing Revolving Loans, (iid) any such increase must 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 principal amount of $50,000,000 5,000,000 and in integral multiples of $5,000,000 above such amount1,000,000 in excess thereof, (iiif) the aggregate Energy Hedging Commitment shall not proceeds of any Additional Loan will be increased to an amount greater than used for the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenderspurposes set forth in Section 3.11, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (vg) the Borrower Borrowers shall execute and deliver a Note or Notes such promissory notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging CommitmentAdditional Loans under any such Incremental Facility, (vih) Schedule 2.01 the conditions to Extensions of Credit in Section 4.2 shall be amended to reflect the revised Commitments of the Lenders have been satisfied and (viii) if any Loans are outstanding at the time of Administrative Agent shall have received from the Parent Borrower updated financial projections and an increase officer's certificate, in each case in form and substance reasonably satisfactory to the Energy Hedging CommitmentAdministrative Agent, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03)demonstrating that, one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other Incremental Facility on a pro forma basis, the Borrowers will be in compliance with the financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise covenants set forth in this Section 2.11, all Energy Hedging 5.9. Participation in the Incremental Loans Facility shall be subject offered first to each of the 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 Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Parent Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Credit Document as may be necessary to incorporate the terms and conditions set forth herein including of any Applicable Marginnew Incremental Facility therein.
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Incremental Facility. Subject to all the terms of this Agreement, provided that (x) no Default exists and is then continuing and (y) the Borrower shall be in pro forma compliance (giving effect to the incurrence of 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”) in an aggregate principal amount that does not exceed $50,000,000. The Borrower may request up to three Borrowings under the Incremental Facility prior to the termination of the Incremental Facility in an aggregate minimum principal amount of $10,000,000. The Incremental Facility shall, among other things, (a) From time to time upon at least 30 days’ prior written notice share in the Collateral to the Facility Agent same extent as the other Loans, (which notice shall b) be promptly transmitted by the Facility Agent entitled to each of the Lenders), the Borrower shall have the right, subject 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 set forth belowthat are reasonably satisfactory to the Administrative Agent. The interest rate, commitment fee rate, amortization schedule and maturity date for the Incremental Facility shall be as agreed upon between any Lenders agreeing to increase provide the aggregate amount of Incremental Facility and the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental Loan”)Borrower; provided that, that (i) at the time 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 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 theretodate, (ii) such increase must the interest earned on the Incremental Facility Loans shall be in a minimum amount of $50,000,000 less than or equal to the interest earned on the Tranche B Term Loans and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment Incremental Facility Loans shall not be increased have a weighted average life to an amount maturity greater than the Maximum Energy Hedging weighted average life to maturity of the Tranche B Term Loans. The lenders and the loans under the Incremental Facility Amount will be “Lenders” and “Term Loans” for all purposes of this Agreement and the other Credit Documents, and shall be treated as such, in terms of sharing of payments and other appropriate provisions. The Incremental Facility will be documented pursuant to an amendment to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Person providing a commitment to the Incremental Facility and the Administrative Agent. Such amendment may, without the prior written consent of the Majority any other Lenders, (iv) no individual Lender’s Commitment effect such amendments to this Agreement and the other Credit Documents as may be increased without such Lender’s written consentnecessary, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments opinion of the Lenders and (vii) if Administrative Agent, to effect the provisions of this Section 2.07. The Incremental Facility may be established at any Loans are outstanding time at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase in the Energy Hedging Commitment shall apply, at the option request of the Borrower, upon notice to the Administrative Agent and the Lenders, and subject only to the 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 shall provide all then existing Lenders with an opportunity to commit to the Incremental Facility on a ratable basis (x) the Energy Hedging Commitment of one or more existing Lenders; provided that each Energy Hedging Issuing Bank and period in which any Lender whose Energy Hedging Commitment is shall be required to make a decision on its participation in the Incremental Facility being increased must consent in writing thereto and/or (y) any event no less than ten Business Days from the creation date of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved delivery by the Borrower of a notice inviting such participation), and if sufficient commitments cannot be obtained in such manner, shall provide other lenders with such opportunity (and for existing Lenders with the ability to commit for more than their ratable portion), and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07)Borrower.
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the A. Borrower shall have the right, subject from time to time on or before the terms and conditions set forth belowIncremental Term Loan Commitment Termination Date, to increase the aggregate amount of the Energy Hedging Commitment request additional term loans (any such increase referred to herein, as each an “Energy Hedging Incremental Term Loan,” and, collectively the “Incremental Term Loans,” and “Term Loans” shall thereafter be deemed to include all Incremental Term Loans) pursuant to an incremental facility (the “Incremental Facility”); provided thatprovided, (i) that at the time any Incremental Term Loan is made pursuant to the Incremental Facility, (a) no Event of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, no Default or Potential Event of Default shall exist have occurred and be continuing or would exist result from the making of such Incremental Term Loan; (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 theretoto both such Incremental Term Loan and the Permitted Acquisition, if any, for which the proceeds of such Incremental Term Loan will be used, in compliance with all terms and conditions contained in this Agreement and the other Loan Documents, 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 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) such increase must be mature and amortize in a minimum amount of $50,000,000 manner reasonably acceptable to the Incremental Term Loan lenders, but in any event have an average weighted life equal to or longer than the Term Loans and in integral multiples of $5,000,000 above such amountmature on a date no earlier than June 30, 2011; provided, that the applicable interest rates may differ from the then existing Term Loans; and (iiie) the aggregate Energy Hedging Commitment proceeds of 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 available to Borrower. Until such time as the Incremental Term Loan lenders agree to make the Incremental Facility 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 “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 Lender shall have the option (in its sole and complete discretion) to subscribe for its Pro Rata Share of such proposed loan under the Incremental Facility; provided, however, that if any Lender has not subscribed for its Pro Rata Share of such proposed Incremental Term Loan, then Administrative Agent shall be increased permitted to an secure new lenders in respect of such Pro Rata Share.
C. The terms of any Incremental Term Loan pursuant to the Incremental Facility including, without limitation, the manner in which interest shall be determined, the amount greater and timing of fees, if any, payable with respect to such Incremental Term Loan and the amortization schedule relating to such Incremental Term Loan shall be set forth in a supplement to this Agreement (a “Supplement”) in form and substance reasonably satisfactory to Administrative Agent, executed by Administrative Agent, the Incremental Term Loan lenders and each Credit Party, provided 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 Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersTerm Loans are to existing Lenders and Borrower, (iv) no individual Lender’s Commitment as applicable. Each Credit Party shall execute and deliver to Administrative Agent such assumptions, guarantees, security documents, opinions and other documents as may be increased without such Lender’s written consentreasonably required by Administrative Agent and Lenders and obligations shall be evidenced by promissory notes substantially in the form of Exhibit X (each, (v) an “Incremental Term Loan Note” and, collectively, the “Incremental Term Loan Notes”), and Borrower shall execute and deliver a an Incremental Term Loan Note or Notes as are necessary and requested by to each Incremental Term Loan lender in the principal amount of such lender’s Pro Rata Share of the Incremental Term Loan being made. Each Incremental Term Loan Note shall represent the obligation of Borrower to pay the amount of the applicable Lenders to reflect the increase Incremental Term Loan advanced by such lender, together with interest thereon as prescribed in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loansapplicable Supplement.
(b) Any such increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
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Incremental Facility. (ai) From The Administrative Borrower may at any time or from time to time upon at least 30 days’ prior written time, in accordance with and subject to the terms of this Agreement, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request one or more additional tranches of loans (other than Revolving Loans) (each of which shall be deemed separate and independent tranches from the Borrower shall have the right, subject Loans and from each other such additional tranche of loans unless such additional tranche of loans has terms identical in all respects to the terms and conditions set forth below, Loans or any other then existing tranche of additional term loans) to increase be funded in Dollars (the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanLoans”); provided that, that (ix) at the time of any such request no Default or Event of Default shall exist and upon at the effectiveness of time that any such Energy Hedging Incremental LoanLoan is made and, after giving effect thereto, no Default or Event of Default shall exist or would exist after giving effect theretoexist, (iiy) such increase must each tranche of Incremental Loans shall be in a minimum an aggregate principal amount of that is not less than $50,000,000 10,000,000 (and in integral multiples minimum increments of $5,000,000 above such amountin excess thereof), (iii) and the aggregate Energy Hedging Commitment principal amount of all Incremental Loans funded pursuant to this Section 2.01(b) shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lendersexceed $90,000,000, and (ivz) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the each Borrower shall execute and deliver be in compliance with the financial covenants contained in Sections 11.08 through 11.10, inclusive, on a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 Pro Forma Basis after giving effect to the increase proposed Incremental Loan and the Permitted Acquisitions, if any, funded thereby. Holdings shall deliver to Administrative Agent, prior to the effectiveness of any Incremental Loan Commitment, a certificate of an Authorized Officer of Holdings certifying that the condition set forth clause (z) 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 Loansimmediately preceding sentence is satisfied after giving effect to any such Incremental Loan Commitment and containing reasonably detailed calculations.
(bii) Any such increase The Incremental Loans (v) shall rank pari passu or junior in right of payment and of security with the Energy Hedging Commitment Loans (including, without limitation, with respect to voluntary prepayments and mandatory prepayments), (w) shall applynot mature earlier than the Maturity Date, at the option of the Borrower, to (x) shall not have a shorter weighted average life to maturity than the Energy Hedging Commitment of one or more existing LendersLoans, (y) shall have an amortization schedule (subject to the immediately preceding clause (x)), interest rate margin, rate floors, fees, premiums and funding discounts as determined by the Administrative Borrower and the Lenders funding the applicable Incremental Loans; provided that each Energy Hedging Issuing Bank in the event that the initial yield for any Incremental Loans is greater than the then-applicable yield for any Loan (such excess yield, the “Yield Differential”), then the Margins for all such Loans shall be increased by an amount equal to the Yield Differential (expressed as a positive number); provided, further, that in determining any yield applicable to the Loans and the Incremental Loans, respectively, underlying interest rate indices, interest rate margins, upfront fees (which shall be deemed, solely for purposes of this provision, to constitute like amounts of original issue discount (“OID”)) payable by the Borrowers to the Lenders of the applicable Loans or the Incremental Loans, and rate floors, shall be included (with deemed OID being equated to interest based on an assumed four-year life to maturity) and customary arrangement or structuring fees payable to the Administrative Agent (or its Affiliates) in connection with the applicable Loans or the Incremental Loans shall be excluded, and (z) may otherwise have terms and conditions different from those of the Term Loan (but subject, in any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) event, to the creation terms and provisions of a new Energy Hedging Commitment this Agreement pertaining to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”Incremental Loans); provided that, that if any such Additional Lender (A) must be approved by differences are materially more favorable to the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use versus the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11Loan, all Energy Hedging Incremental Loans such differences shall be subject to the terms consent of the Administrative Agent.
(iii) Incremental Loan Commitments shall become commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by each Borrower, each Lender agreeing to provide such Incremental Loan Commitment, and conditions set forth herein including the Administrative Agent; provided that such Incremental Amendment shall not be effective prior to the date that is ten (10) Business Days (or such shorter period as agreed to by the Administrative Agent) from the date Administrative Agent first receives the notice required pursuant to Section 2.01(b)(i). Each Lender providing an Incremental Loan Commitment shall be subject to approval of the Administrative Agent in its sole discretion. The Incremental Amendment may, subject to Section 2.01(b)(ii), without the consent of any Applicable Margin.other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.01
Appears in 1 contract
Sources: Credit Agreement (STG Group, Inc.)
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower The Company shall have the right, subject from time to the terms and conditions set forth belowtime, to increase the aggregate amount of the Energy Hedging Commitment request additional term loans (any each such increase referred to herein, as loan an “Energy Hedging Incremental Loan”) pursuant to an incremental facility (the “Incremental Facility”); , provided that, (i) that at the time any tranche of any such request and upon Incremental Loans is issued pursuant to the effectiveness Incremental Facility, (a) no Unmatured Event of any such Energy Hedging Incremental Loan, no Default or Event of Default shall exist have occurred and be continuing or would exist after giving effect theretoresult from the issuance of such Incremental Loans, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iiib) the aggregate Energy Hedging Commitment Company shall not be increased have delivered to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersAdministrative Agent a Compliance Certificate, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consentcompleted on a pro forma basis, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 increase in the Energy Hedging CommitmentIncremental Loans, 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower the aggregate principal amount of all tranches under the Incremental Facility hereunder shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
not exceed $200,000,000, (d) Except as otherwise set forth each tranche must be a term loan which is governed by the terms of this Agreement and the other Loan Documents with terms and conditions no more restrictive than those in this Section 2.11effect with respect to the then existing Facilities, all Energy Hedging (e) the Company or a Restricted Subsidiary Obligor which is a U.K. Subsidiary or a U.S. Subsidiary must be the borrower (an “Incremental Borrower”) thereunder, (f) the weighted average life and final maturity of each tranche shall be at least six months longer than the weighted average life and final maturity of the Term B Loans, (g) the applicable interest rates may differ from the then existing Facilities, provided, however, if the Applicable Margin for any tranche of Incremental Loans is more than 25 basis points higher than the Applicable Margin for the Term B Loans, the Applicable Margin for the Term B Loans shall be proportionately adjusted such that the Applicable Margin for any tranche of Incremental Loans is no more than 25 basis points higher than the Applicable Margin for the Term B Loans, and (h) any Incremental Loans shall be subject to the terms issued at a price (including upfront fees and conditions set forth herein including any Applicable Marginoriginal issue discount, if any) not lower than 99.50% of par.
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (Hollinger International Inc)
Incremental Facility. (a) From At any time prior to time upon at least 30 days’ prior written the sixth anniversary of the Effective Date, the U.S. Borrower may, by notice to the Facility U.S. Administrative Agent (which notice shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request the Borrower shall have addition of a new tranche of term loans (the right, subject to the terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanTerm Loans”); provided that, (i) that both at the time of any such request and upon the effectiveness of any such Energy Hedging the Incremental LoanFacility Amendment referred to below, no Default or Event of Default shall exist or would exist and at the time that any such Incremental Term Loans are made (and after giving effect thereto) no Default shall exist and Holdings and the Borrowers shall be in compliance with Section 6.01, determined on a pro forma basis as if such Incremental Term Loans had been incurred at the beginning of the most recent period for testing compliance therewith. The Incremental Term Loans (i) shall be in an aggregate principal amount not exceeding (in the aggregate) $250,000,000, (ii) such increase must be shall rank pari passu in a minimum amount right of $50,000,000 payment and in integral multiples of $5,000,000 above such amountsecurity with the Revolving Loans and the Term Loans, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater mature earlier than the Maximum Energy Hedging Incremental Facility Amount without the Term Loan Maturity Date (but may, subject to clause (iv) below, have amortization and commitment reductions prior written consent of the Majority Lendersto such date), (iv) no individual Lender’s Commitment may be increased without such Lender’s written consentshall not have a weighted average life that is shorter than that of the Initial Term Loans, (v) shall not accrue interest at a rate or rates in excess of the Borrower interest rates applicable to the Initial Term Loans and (vi) shall execute otherwise be treated no more favorably than the Initial Term Loans (in each case, including with respect to mandatory and deliver a Note voluntary prepayments and financial covenants); provided that the terms and conditions applicable to the Incremental Term Loans may provide for additional or Notes as are necessary and different financial or other covenants applicable only during periods after the Term Loan Maturity Date. Such notice shall set forth the requested amount of Incremental Term Loans. In the event that existing Lenders provide commitments in an aggregate amount less than the total amount of the Incremental Term Loans requested by the applicable Lenders U.S. Borrower (but the U.S. Borrower shall not have any obligation to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended request any Lender to reflect the revised Commitments provide any amount of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentIncremental Term Loans), the U.S. Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), may arrange for one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank banks or other financial institution institutions (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must unsubscribed amount. Commitments in respect of Incremental Term 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 Documents, executed by execution Holdings, the U.S. Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and delivery the U.S. Administrative Agent. Subject to clauses (i) through (vi) above, the Incremental Facility Amendment may, without the consent of an Assignment any other Lenders, effect such amendments to this Agreement and Assumption Agreement; provided further thatthe other Loan Documents as may be necessary or appropriate, 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 Section 10.07).
(c) The Borrower shall use the proceeds opinion of the Energy Hedging U.S. Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans Facility Amendment shall be subject to the terms and satisfaction on the date thereof of each of the conditions set forth herein including in 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 effective date of such Incremental Facility Amendment). No Lender shall be obligated to provide any Applicable MarginIncremental Term Loans unless it so agrees.
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Incremental Facility. (a) From At any time prior to time upon at least 30 days’ prior written the Tranche B Maturity Date, the Borrower may, by notice to the Facility Administrative Agent (which notice shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request the Borrower addition of a new tranche of Term Loans (all such Loans, collectively, the “Incremental Loans”) provided, however, that the addition of a tranche of Incremental Loans under this Agreement and the other Loan Documents shall have the right, be subject to the terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, (i) both at the time of any such request and upon the effectiveness of any such Energy Hedging the Incremental LoanFacility Amendment referred to below, (i) no Default or Event of Default shall exist or would exist after giving effect theretoexist, (ii) such increase must the Borrower shall be in a minimum pro forma compliance with the Financial Covenants, to the extent then applicable, and (iii) the Senior Bank Debt Basket Amount shall equal or exceed the sum of the Revolving Commitments, the unused Tranche A Commitments, the outstanding Term Loans and the amount of such tranche of Incremental Loans. The Incremental Loans (i) shall be in an aggregate principal amount of at least $50,000,000 100,000,000 and not in integral multiples excess of $5,000,000 above such amount600,000,000, (ii) shall rank pari passu 35 in right of payment and of security (including under the Security Documents) with the Revolving Loans and the Term Loans, (iii) shall mature no sooner than six months after the aggregate Energy Hedging Commitment Tranche B Maturity Date and shall not be increased to an amount greater have a longer average weighted life than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent combined weighted average life of the Majority LendersRevolving Loans (assuming the Revolving Commitments were fully drawn) and the Term Loans, and (iv) shall otherwise be treated no individual Lender’s Commitment more favorably than the Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the terms and conditions applicable to the Incremental Loans may be increased without such Lender’s written consent, provide for additional or different financial or other covenants applicable only during periods after the Tranche B Maturity Date. Such notice shall set forth the requested amount of Incremental Loans (v) the which amount shall not exceed $600,000,000). The Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), arrange for one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share vendors of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one telecommunications equipment 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) the creation of a new Energy Hedging Commitment to one or more bank banks or other financial institution institutions (any such other bank or ban k, other financial institution or vendor that is not already a Lender, being called an “Additional Lender”); ) to extend commitments to provide Incremental Loans in an aggregate amount equal to the requested amount of Incremental Loans, provided that, any such that each Additional Lender that is not a vendor of telecommunication equipment or an existing Lender shall be subject to the approval of the Administrative Agent (A) must which approval shall not be approved unreasonably withheld). The proceeds of the Incremental Loans will be used to finance the purchase, acquisition or construction of Telecommunications Assets, including real estate, to be owned and utilized by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must Restricted Subsidiaries. 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 Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and delivery the Agent. The Incremental Facility Amendment may, without the consent of an Assignment any other Lenders, effect such amendments to this Agreement and Assumption Agreement; provided further thatthe other Loan Documents as may be necessary or appropriate, 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 Section 10.07).
(c) The Borrower shall use the proceeds opinion of the Energy Hedging Agent, to effect the provisions of this Section. The effectiveness of any Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans Facility Amendment shall be subject to the terms and satisfaction on the date thereof of each of the conditions set forth herein including in Section 4.02. No Lender shall be obligated to provide any Applicable MarginIncremental Loans unless it so agrees.
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Incremental Facility. (a) From The Borrower and any one or more other Persons that are Lenders or will become New Lenders may from time to time upon at least 30 days’ prior written notice agree that such Lenders or New Lenders shall extend term commitments and make term loans thereunder by executing and delivering to the Administrative Agent an Incremental Facility Agent Activation Notice specifying (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase i) the aggregate principal amount of the Energy Hedging Commitment Incremental Term Loans to be made thereunder, (any ii) the applicable Incremental Facility Closing Date and (iii) (x) the applicable Incremental Maturity Date, (y) the amortization schedule for such increase referred to herein, as an “Energy Hedging Incremental Loan”)Loans and (z) the Applicable Margin for such Incremental Loans; provided that, that (iA) 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 immediately before or would exist after giving effect theretoto the making of such Incremental Loans, (B) on a pro forma basis after giving effect to the incurrence of such Incremental Loans (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), (1) the Borrower shall be in compliance with the financial covenant set forth in Section 6.15 and (2) the Total Leverage Ratio shall be 2.50 to 1.00 or less, in 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 pursuant to Section 5.06, (C) 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 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 Incremental Term Loans are made, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct 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 date such Incremental Facility is 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) such without the consent of the Administrative Agent, (x) each increase must effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 10,000,000 and in integral multiples of $5,000,000 above such amount, (iiiy) the aggregate Energy Hedging Commitment shall not be increased to an amount greater no more than the Maximum Energy Hedging three Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment Closing Dates may be increased without such Lender’s written consent, (v) selected by the Borrower after the Closing Date. No Lender shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders have any obligation to reflect the participate in any increase described in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended this paragraph unless it agrees to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase do so in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loanssole 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 increase in the Energy Hedging Commitment shall applybank, 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) the creation of a new Energy Hedging Commitment to one or more bank financial institution or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must entity shall become a Lender under for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of 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 Section 10.07).
(c) The Borrower shall use Notwithstanding anything to the proceeds contrary in this Agreement, each of the Energy Hedging parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loans solely for evidenced thereby. The Administrative Agent and the purpose for which Borrower may, without the proceeds 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 appropriate, in the opinion of the Energy Hedging Administrative Agent and the Borrower, to give effect to the provisions of any Incremental Facility Activation Notice and of this Section 2.16, including any amendments necessary to treat the applicable Loans may be used.
(d) Except and/or Commitments of the Incremental Lenders as otherwise set forth 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, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin2.16.
Appears in 1 contract
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to On or before the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)Maturity Date, the Borrower shall will have the right, subject to but not the terms and conditions set forth belowobligation, to increase the aggregate committed amount of the Energy Hedging Commitment Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanFacility”); provided that, : (i) at all representations and warranties hereunder shall be true and correct in all material respects after giving effect to the time Incremental Facility (except in the case of any such request representation and upon warranty which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the effectiveness of any such Energy Hedging Incremental Loanrespective date or for the respective period, as the case may be) and no Default or Event of Default shall exist or would exist have occurred and be continuing 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 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by be in compliance with all covenants, including, without limitation, pro forma compliance with the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 Financial Covenants after giving effect to the increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share Incremental Facility; and (based on its share iii) all other terms of the revised Energy Hedging Commitment) Incremental Facility shall be substantially identical with the terms of outstanding Energy Hedging Loansthe existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any such increase Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing Lendersconnection therewith; provided that each Energy Hedging Issuing Bank 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 any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 bookrunner (including by means of assignment any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or participation pursuant to Section 10.07).similar fees in connection therewith. 56 #96922345v9
(c) The Borrower shall use Upon the proceeds effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Energy Hedging 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 Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(dFacility) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject after giving effect to the terms and conditions set forth herein including any Applicable Marginapplicable Incremental Facility.
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Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), the Borrower shall have the rightrequest one or more additional tranches of term loans, subject to the terms and conditions set forth belowrevolving facilities or letter of credit facilities (each, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanFacility”); , provided that, that (i) at the time of any such request and upon after the effectiveness of any such Energy Hedging Incremental LoanAmendment referred to below, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a minimum amount pro forma basis as of $50,000,000 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 in integral multiples any revolving commitment under such Incremental Facility (to the extent not available to issue letters of $5,000,000 above credit) had been fully used on the last day of such amount, period and (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than Consolidated Leverage Ratio determined on a pro forma basis as of the Maximum Energy Hedging 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 Facility Amount without had been outstanding on the prior written consent last day of the Majority Lenderssuch period, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended less than 2.5 to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of 1.0. Each Incremental Facility shall be in an increase in the Energy Hedging Commitment, the Borrower will prepay aggregate principal amount that is not less than $50,000,000 (provided that any such prepayment 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 subject to Section 2.03), one or not more existing Energy Hedging Loans in an amount necessary such that after giving effect than 3 requests for Incremental Facilities. Notwithstanding anything to the increase in contrary herein, the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share aggregate amount of the revised Energy Hedging CommitmentIncremental Facilities shall not exceed $200,000,000. Any Incremental Facility (a) shall rank pari passu in right of outstanding Energy Hedging payment and of security with the Loans.
, (b) Any shall not mature earlier than the Maturity Date or have a weighted average life (if applicable) which is shorter than the then remaining average life of the Loans, and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such increase Incremental Facility, provided that (A) to the extent such terms and documentation are not consistent with the Facility (other than with respect to pricing, amortization and maturity) they shall 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 to the lenders under Facility or the Incremental Facility, as applicable, in the Energy Hedging Commitment shall apply, at primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any Incremental Facility exceeds the option Applicable Margin relating to the Facility immediately prior to the effectiveness of the Borrowerapplicable Incremental Amendment, the Applicable Margin relating to (x) the Energy Hedging Commitment Facility shall be adjusted to equal the 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 one or more existing Lenders; provided that each Energy Hedging Issuing Bank the relevant Incremental Facility and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more bank Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); , provided that, any such Additional Lender that the Administrative Agent shall have consented (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.6 for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.1(e) hereof. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the 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 such other conditions as the parties thereto shall agree. The Borrower shall will use the proceeds of the Energy Hedging Incremental Loans solely 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 purpose for which Lenders hereby agree that the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Section 2.11, all Energy Hedging Incremental Loans Agreement shall be subject not apply to the terms and conditions set forth herein including any Applicable Margintransactions effected pursuant to this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (ai) From time to time upon at least 30 days’ With the prior written agreement of the Administrative Agent entered into after the Restatement Effective Date, the Borrower may at any time before October 1, 2011, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request an additional tranche of term loans under this Agreement (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 such increase referred to herein, as an “Energy Hedging Incremental LoanTerm Loans”); provided that, (i) that both at the time of any such request and upon after giving effect to the effectiveness of any such Energy Hedging Incremental LoanAmendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made or would exist effected (and 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 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consentDefault or Event of Default shall exist; provided, (v) the Borrower shall execute and deliver further that on a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 Pro Forma Basis after giving effect to the increase incurrence of such Incremental Term Loan (and after giving effect to any acquisition consummated simultaneously therewith), the Borrower would be in compliance with the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share requirements of Article V computed as of the revised Energy Hedging Commitment) last day of outstanding Energy Hedging Loansthe most recently ended Fiscal Quarter for which financial statements are available pursuant to Section 6.1(b).
(bii) Any such increase Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $5,000,000 and the Energy Hedging Commitment shall apply, at the option aggregate amount of the Borrower, to Incremental Term Loans shall not exceed $75,000,000 (the “Incremental Availability”).
(iii) The Incremental Term Loans (x) (A) shall rank pari passu in right of payment and of security with the Energy Hedging Commitment Term Loans, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter weighted average life to maturity than the Initial Term Loans and (D) subject to the foregoing, the amortization schedule and Applicable Margins for the Incremental Term Loans shall be determined by the Borrower and the Lenders of one the Incremental Term Loans; provided, however that the interest rate applicable to the Incremental Term Loans shall not be greater than the highest interest rate that may, under any circumstances, be payable with respect to Term Loans (including any default interest rate payable in accordance with Section 2.9(c)) unless the interest rate with respect to the Revolving Loans and Term Loans is increased so as to equal the interest rate applicable to the Incremental Term Loans (including any such default interest rate); provided, further, that in determining the Applicable Margins applicable to the Term Loans and the Incremental Term Loans, original issue discount (“OID”) or more existing Lenders; provided that each Energy Hedging Issuing Bank upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or such shorter period as may be applicable based on the actual life to maturity) and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) shall otherwise be on the creation same terms and conditions as the Term Loans, other than differences, if any, (except with respect to the differences set forth in clauses (B) (C) and (D) above), that have been approved by the Required Lenders.
(iv) The notice from the Borrower pursuant to this Section 2.1(c) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Each Term Loan Lender shall have the right for a new Energy Hedging Commitment period of 15 days following receipt of such notice, to one elect by written notice to the Borrower and the Administrative Agent to issue a commitment for the Incremental Term Loans on the proposed terms in an amount not exceeding its Pro Rata Share. No Lender (or more any successor thereto) shall have any obligation to issue any such commitment, and any decision by a Lender to issue any such commitment shall be made in its sole discretion independently from any other Lender. If any Term Loan Lender shall not elect to issue a commitment for the Incremental Term Loan in the maximum amount so permitted pursuant to this subsection (iv) of this Section 2.1(c), the Borrower may designate another bank or other financial institution (any which may be, but need not be, one or more of the existing Lenders) to issue a commitment for the portion of the Incremental Term Loan as to which such Term Loan Lender did not issue a commitment, and, if such other bank or other financial institution being called is not a party to this Agreement (an “Additional Lender”); provided that, any such Additional Lender (A) shall become a party to this Agreement; provided, however, that any Additional Lender must be approved by acceptable to the Borrower and the Facility Agent (such approval Administrative Agent, which acceptance will not to be unreasonably withheldwithheld or delayed if such consent would be required under Section 11.2 for an assignment of Loans to such Lender or Additional Lender.
(v) and each Energy Hedging Issuing Bank and (B) must Commitments in respect of Incremental Term Loans shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, and delivery the Administrative Agent. The Incremental Amendment may, subject to Section 2.1(c)(iv), without the consent of an Assignment any other Lenders, effect such amendments to this Agreement and Assumption Agreement; provided further thatthe other Loan Documents as may be necessary, in no event the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment 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 all references to “the date of such Credit Event” or at any time similar language in such Section 3.2 shall any Borrower Affiliate or Macquarie Affiliate be a Lender for any Energy Hedging deemed to refer to the effective date of such Incremental Loans (including by means of assignment or participation pursuant to Section 10.07).
(cAmendment) and such other conditions as the parties thereto shall agree. The Borrower shall may use the proceeds of the Energy Hedging Incremental Term Loans solely for the any purpose for which the proceeds of the Energy Hedging Loans may be usednot prohibited by this Agreement.
(dvi) Except as otherwise set forth This Section 2.1(c) shall supersede any provisions in this Section 2.11, all Energy Hedging Incremental Loans shall be subject 11.1 to the terms and conditions set forth herein including any Applicable Margincontrary.
Appears in 1 contract
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice Subject to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)terms and conditions set forth herein, the Borrower shall have the right, subject at any time from time to time during the Commitment Period and after the Second Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $150,000,000. The following terms and conditions set forth below, shall apply to increase each Incremental Facility: (a) the aggregate amount of the Energy Hedging Commitment (loans made under any such increase referred to herein, as Incremental Facility (each an “Energy Hedging Incremental Additional Loan”); provided that) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ib) any such Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms (including interest rate, maturity date, voting rights and rights to receive the proceeds of prepayments) as the existing Revolving Loans and shall be considered Revolving Loans hereunder and (2) made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of prepayments and amortization) to be agreed upon by the Administrative Agent and the Borrower at the time of such Incremental Term Loan, (c) each Incremental Facility shall be in a minimum principal amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof, (d) 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 request and upon Incremental Facility, (f) before any Additional Loans are made, the effectiveness conditions to Extensions of any such Energy Hedging Incremental LoanCredit in Section 4.2 shall have been satisfied, (g) no Default or Event of Default shall then 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 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.would
Appears in 1 contract
Sources: Credit Agreement (Belden Inc.)
Incremental Facility. (a) From The Company may from time to time upon at least 30 days’ prior written notice amend this Agreement in order to provide to the Facility Agent Company additional revolving loan facilities (which notice shall be promptly transmitted by the Facility Agent to each of the Lenderseach, an “Incremental Revolving Loan Facility”) and additional term loan facilities (each, an “Incremental Term Loan Facility”), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase provided that (i) the aggregate principal amount of the Energy Hedging Commitment Incremental Facilities shall not exceed $750,000,000 and (any such increase referred ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the then remaining average life of the original comparable Facility taken as a whole and a final maturity no earlier than the comparable Facility. Incremental Facilities will be entitled to hereinprepayments and voting rights on the same basis as comparable Facilities unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, as an “Energy Hedging Incremental Loan”); provided that, after giving effect thereto and the use of proceeds thereof (ix) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, 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 pro forma basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made pursuant to such Incremental Facility and the Permitted Acquisition and other permitted uses made with the proceeds thereof) shall exist be equal to or would exist after giving effect theretoless than the then applicable Consolidated Total Net Leverage Ratio Level, provided that the requirement under clause (y) shall not apply if the proceeds of the Incremental Facility are used to repay all or a portion of the Existing Convertible Subordinated Notes. Proceeds of Incremental Facilities may be used only for the purposes specified in subsections 4.3 and 7.3.
(b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Company and the Administrative Agent) identified as “Incremental Lenders” therein who have executed such Incremental Facility Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amountthe applicable Incremental Facility Effective Date, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than applicable maturity date for the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersFacility, (iv) no individual Lender’s Commitment may be increased without the amortization schedule or revolving credit period, as applicable, applicable to such Lender’s written consentIncremental Facility, (v) the Borrower shall execute whether such Incremental Lenders are entitled to share in mandatory prepayments as specified in subsection 8.6 and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 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 be amended otherwise duly completed. Each Incremental Lender that is a signatory to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentIncremental Facility Activation Notice severally agrees, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including of this Agreement, to make Incremental Loans to the Company on the date or during the periods specified in such Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be construed to obligate any Applicable MarginLender not party to such Incremental Facility Activation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. (a) From The Company may from time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each third anniversary of the LendersClosing Date amend this Agreement in order to provide to the Company additional revolving loan facilities (each, an "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase provided that (i) the aggregate principal amount of the Energy Hedging Commitment Incremental Facilities shall not exceed $400,000,000 and (any such increase referred ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the average life 104 of the Revolving Credit Facility, Tranche A Term Loan Facility and Tranche B Term Loan Facility taken as a whole and a final maturity of at least six months longer than the final maturity date of the Tranche B Term Loan Facility. Incremental Facilities will be entitled to hereinprepayments and voting rights on the same basis as comparable Facilities unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, as an “Energy Hedging Incremental Loan”); provided that, (i) at after giving effect thereto and the time use of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanproceeds 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 PRO FORMA basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made pursuant to such Incremental Facility and the Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of Incremental Facilities may be used only for the purposes specified in subsections 4.3 and 7.3.
(b) An Incremental Facility shall exist or would exist after giving effect theretobe made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Company and the Administrative Agent) identified as "Incremental Lenders" therein who have executed such Incremental Facility Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amountthe applicable Incremental Facility Effective Date, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging applicable Incremental Facility Amount without the prior written consent of the Majority LendersMaturity Date, (iv) no individual Lender’s Commitment may be increased without the amortization schedule or revolving credit period, as applicable, applicable to such Lender’s written consentIncremental Facility, (v) the Borrower shall execute whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and deliver a Note or Notes are entitled to share in mandatory prepayments as are necessary specified in subsection 8.6 and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 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 be amended otherwise duly completed. Each Incremental Lender that is a signatory to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentIncremental Facility Activation Notice severally agrees, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including of this Agreement, to make Incremental Loans to the Company on the date or during the periods specified in such Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be construed to obligate any Applicable MarginLender not party to such Incremental Facility Activation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower shall have the right, subject Subject to the terms and conditions set forth belowherein, Borrower shall have the right, at any time and from time to time, to increase incur additional Indebtedness under this Agreement in the form of one or more (but not to exceed five) additional term loan facilities (each an "Incremental Facility") by an aggregate amount of up to $50,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the Energy Hedging Commitment (loans made under any such Incremental Facility (each an "Additional Loan") shall constitute Obligations and will be secured and guaranteed with the other Loans on a pari passu basis, (b) the interest rate margin applicable to any such Incremental Facility shall be no higher than 0.25% above the Applicable Percentage for any existing series of Term Loans (including any existing Additional Loans) without a corresponding increase referred in the Applicable Percentage for such existing Term Loans (including any existing Additional Loans), (c) the interest rate margin, weighted average life to hereinmaturity and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available, as an “Energy Hedging Incremental Loan”); provided that, but in any event (i) at such final maturity will not be shorter than the time of any such request Term Loan Maturity Date and upon the effectiveness of any such Energy Hedging Incremental Loanwill not extend beyond June 16, no Default or Event of Default shall exist or would exist after giving effect thereto, 2011 and (ii) such increase must weighted average life to maturity will not be shorter than the weighted average life to maturity of any existing series of Term Loans (including any existing Additional Loans), (d) any 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 comparable Loans, (e) 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, (f) any such Incremental Facility shall be in a minimum principal amount of $50,000,000 7,500,000 and in integral multiples of $5,000,000 above such amount1,000,000 in excess thereof, (iiig) the aggregate Energy Hedging Commitment shall not proceeds of any Additional Loan will be increased used to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lendersfinance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (vh) the Borrower conditions to Extensions of Credit in Section 4.2 shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders have been satisfied and (viii) if any Loans are outstanding at the time of Administrative Agent shall have received from Borrower updated financial projections and an increase Officers' Certificate, in the Energy Hedging Commitmenteach case in form and substance satisfactory to Administrative Agent, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03)demonstrating that, one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other Incremental Facility, Borrower will be in compliance with the financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise covenants set forth in this Section 2.11, all Energy Hedging 7.6. Participation in any such Incremental Loans Facility hereunder shall be subject offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all or any portion of such Incremental Facility. If, upon the date that is fifteen (15) Business Days after the existing Lenders are invited by the Administrative Agent to participate in such Incremental Facility, the amount of the Incremental Facility requested by Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, then Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to 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 enter into such joinder agreements to give effect thereto as Administrative Agent and Borrower may reasonably request. Administrative Agent is authorized to enter into, on behalf of Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms and conditions set forth herein including of any Applicable Marginnew Incremental Facility therein.
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Incremental Facility. (a) From At any time prior to time upon at least 30 days’ prior written the Tranche B --------------------- Maturity Date, the Borrower may, by notice to the Facility Administrative Agent (which notice shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request the Borrower shall have addition of a new tranche of Term Loans and/or Revolving Loans (all such Loans, collectively, the right"Incremental Loans") provided, subject to the terms and conditions set forth belowhowever, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, (i) that both at the time of any such ----------------- -------- ------- request and upon the effectiveness of after giving effect to any such Energy Hedging Incremental Loan, Loans (i) no Default or Event of Default shall exist or would exist after giving effect theretoand (ii) the Borrower shall be in pro forma compliance with Sections 6.13, 6.14, 6.15, 6.16, 6.17 and 6.18, to the extent then applicable. The Incremental Loans (i) shall be in an aggregate principal amount of at least $100,000,000 and not in excess of $700,000,000, (ii) such increase must be shall rank pari passu in a minimum amount ---- ----- right of $50,000,000 payment and in integral multiples of $5,000,000 above such amountsecurity (including under the Subsidiary Guarantee Agreement) with the Revolving Loans and the Term Loans, (iii) shall mature no sooner than, and have a longer average weighted life than, the aggregate 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 Majority LendersTranche B Term Loans, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consentwill not amortize (other than nominal amortization customary in the institutional loan market) and will not mature earlier than eight years from the date hereof, (v) shall not be available unless the Borrower shall execute Tranche A Commitments and deliver a Note or Notes as are necessary Tranche B Commitments have been fully utilized and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall otherwise be amended to reflect treated no more favorably than the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase Term Loans, in the Energy Hedging Commitmentcase of term Incremental Loans, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03)or Revolving Loans, one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the increase in the Energy Hedging Commitmentcase of revolving Incremental Loans (in each case, 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, including with respect to (x) the Energy Hedging Commitment of one or more existing Lenders; provided that each Energy Hedging Issuing Bank mandatory and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”voluntary prepayments); provided that, any such Additional Lender -------- that (Ai) must be approved by an amount not in excess of $100,000,000 in principal amount of the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 may mature on the Tranche A Maturity Date (including by means and amortize on a pro rata basis with the then remaining Tranche A Loans prior to such date), (ii) an amount equal to not more than the excess of assignment or participation pursuant to Section 10.07).
(c) The Borrower shall use $100,000,000 over the proceeds amount of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except Loans, if any, maturing as otherwise set forth in this Section 2.11clause (i) may mature on the Tranche B Maturity Date (and amortize on a pro rata basis with the then remaining Tranche B Loans prior to such date), all Energy Hedging Incremental Loans shall be subject to and (iii) the terms and conditions set forth herein including any Applicable Margin.conditions
Appears in 1 contract
Sources: Credit Agreement (McLeodusa Inc)
Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent 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 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); provided that, that (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanrequest, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Article VI determined on a minimum 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 $50,000,000 and 150,000,000. Each Incremental Facility shall be in integral multiples 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 $5,000,000 above greater than 5% of the original principal amount of such amountIncremental 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 aggregate Energy Hedging Commitment Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall not be increased the same as those applicable to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersRevolving Facility, (iv) no individual Lender’s Commitment may the Applicable Margin relating to any Incremental Term Facility shall be increased without determined by the Borrower and the Lenders providing such Lender’s written consent, Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders Persons willing to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any provide 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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing LendersIncremental Term Facility; provided that each Energy Hedging Issuing Bank to the extent such terms and any Lender whose Energy Hedging Commitment is documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being increased must consent in writing thereto and/or (y) agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the creation Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of a new Energy Hedging Commitment to one or more bank the relevant Incremental Facility and the Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); provided thatthat the Administrative Agent, any such Additional Lender (A) must be approved by the Borrower Swingline Lender, and the Facility Agent Issuing Bank shall have consented (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.4 for an assignment of Loans to such Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.2(b) hereof. The Incremental Amendment may, without need for the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.23. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all references to the 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 shall will use the proceeds of the Energy Hedging 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 any Incremental Revolving Facility, each Lender’s and each Additional Lender’s, if any, Pro Rata Share of each of the Revolving Commitments and the Revolving Loans solely 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 furtherance of the foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be deemed to have irrevocably sold, transferred, conveyed and assigned to each other Lender and each other Additional Lender, if any (and without, for the purpose for which avoidance of doubt, increasing or decreasing the proceeds aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall hold a Pro Rata Share of each of the Energy Hedging Revolving Commitments and Revolving Loans may be usedequal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice Subject to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders)terms and conditions set forth herein, the Borrower shall have the right, subject at any time from time to time during the Commitment Period and after the Second Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $100,000,000. The following terms and conditions set forth below, shall apply to increase each Incremental Facility: (a) the aggregate amount of the Energy Hedging Commitment (loans made under any such increase referred to herein, as Incremental Facility (each an “Energy Hedging Incremental Additional Loan”); provided that) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ib) (1) any such Additional Loans (A) made pursuant to an Incremental Revolver shall (I) have the same terms (including interest rate, voting rights and rights to receive the proceeds of prepayments) as the existing Revolving Loans, (II) shall be considered Revolving Loans hereunder and (III) 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 prepayments and amortization) to be agreed upon by the Administrative Agent and the Borrower at the time of such Incremental Term Loan and (2) the additional Revolving Commitments comprising the Incremental Revolver shall be Extended Revolving Commitments, (c) each Incremental Facility shall be in a minimum principal amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof, (d) 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 request and upon Incremental Facility, (f) before any Additional Loans are made, the effectiveness conditions to Extensions of any such Energy Hedging Incremental LoanCredit in Section 4.2 shall have been satisfied, (g) no Default or Event of Default shall then exist or would exist after giving effect theretoto any such Incremental Facility, (iih) the Administrative Agent shall have received from the Borrower a satisfactory legal opinion of counsel to the Borrower and such increase must be 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 a minimum amount of $50,000,000 each case in form and in integral multiples of $5,000,000 above such amountsubstance satisfactory to the Administrative Agent, demonstrating that, (iiiA) the aggregate 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other Incremental Facility on a pro forma basis, the Credit Parties will be in compliance with the financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank covenants set forth in Section 5.9 and (B) must become a Lender if the full amount of the Revolving Committed Amount (after giving effect to such Incremental Facility) were drawn by the Borrower, the Credit Parties would be in compliance with all financial and other covenants (including covenants restricting indebtedness and liens) under this Agreement by execution the Subordinated Note Documents and delivery of an Assignment the documents for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). Each Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds reasonably acceptable to the Administrative Agent and Assumption Agreementthe Borrower; provided further thatthat such other banks, in no event financial institutions and investment funds shall enter into such joinder or at any time shall any other agreements to give effect thereto as the Administrative Agent and the Borrower Affiliate or Macquarie Affiliate be a Lender for any Energy Hedging Incremental Loans (including by means of assignment or participation pursuant may reasonably request. The Administrative Agent is authorized to Section 10.07).
(c) The Borrower shall use the proceeds enter into, on behalf of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans Lenders, any amendment to this Credit Agreement or any other Credit Document as may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject necessary to incorporate the terms and conditions set forth herein including of any Applicable MarginIncremental Facility therein.
Appears in 1 contract
Sources: Credit Agreement (Belden Inc.)
Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written during the Incremental Facility Availability Period, by notice to the Facility Agent (which notice shall be promptly transmitted by whereupon the Facility Agent shall promptly deliver a copy to each of the Lenders), request that one or more additional tranches of Capital Expenditure Loans (the Borrower shall have the right, subject “Incremental Loans”) be made available to the terms and conditions set forth below, to increase Borrower. At the aggregate amount time of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, Amendment referred to below (x) no Default or Event of Default shall exist or would exist after giving effect thereto, (iiy) such increase must a Lock-Up Event shall not have occurred and be in a minimum amount of $50,000,000 continuing and in integral multiples of $5,000,000 above such amount, (iiiz) the aggregate Energy Hedging Commitment Group FFO Leverage Ratio shall not be increased to an amount greater less than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, 8.50% and (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (vii) the Borrower initial request for a Borrowing of Incremental Loans, all Capital Expenditure Commitments (which, for avoidance of doubt, shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders not refer to reflect the increase in the Energy Hedging Commitment, (vicommitments for Incremental Loans) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 Loanshave been fully borrowed.
(b) Any Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided, that such increase amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the Energy Hedging Commitment shall applynext sentence). Notwithstanding anything to the contrary herein, at the option aggregate principal amount of the BorrowerIncremental Loans shall not exceed the sum of $750,000,000.
(c) The Incremental Loans (i) shall rank pari passu in right of payment and of security with the Loans, (ii) shall not mature earlier than one year after the Final Maturity Date, (iii) shall not be materially more restrictive, taken as a whole, to the Borrower (xincluding with respect to mandatory and voluntary prepayments) than the Energy Hedging Commitment terms of one or more existing Lendersthis Agreement; provided that a certificate of an Authorized Officer of the Borrower is delivered to the Facility Agent at least five (5) Business Days (or such shorter period as the Facility Agent may reasonably agree) prior to the effectiveness of any Incremental Amendment, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing 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 have a weighted average life not shorter than that of the remaining average life of the Capital Expenditure Loans and (v) shall otherwise be on terms and conditions to the extent not consistent with the Facilities, reasonably satisfactory to the Majority 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 proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (and each Energy Hedging Issuing Bank and existing Lender will have the right, but not an obligation, to make a portion of any Lender whose Energy Hedging Commitment is being increased must consent Incremental Loan on terms permitted in writing thereto and/or (ythis Section 2.11) the creation of a new Energy Hedging Commitment to one or more by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must become a Lender under this Agreement by execution and delivery of an Assignment and Assumption Agreement; provided further that, 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 Section 10.07).
. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (can “Incremental Amendment”) to this Agreement and, as appropriate, the other Financing Documents, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Facility Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Financing Documents as may be necessary or appropriate, in the reasonable opinion of the Facility Agent and the Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Financial Closing Date”) of each of the conditions set forth in Section 4.03 (it being understood that all references to the Financial Closing Date or “the date of such Loan” or similar language in such Section 4.03 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging 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.
(de) Except as otherwise set forth This Section 2.11 shall supersede any provisions in this Section 2.11, all Energy Hedging Incremental Loans shall be subject 10.01 to the terms and conditions set forth herein including any Applicable Margincontrary.
Appears in 1 contract
Incremental Facility. (a) From Each Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving facilities or letter of credit facilities or an increase in 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); , provided that, that (i) at the time of any such request and upon after the effectiveness of any such Energy Hedging Incremental LoanAmendment referred to below, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Company shall be in compliance with the covenants contained in Section 7.1 determined on a minimum 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 the 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 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 (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).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Facility shall not mature earlier than the Revolving Termination Date nor have a weighted average life (if applicable and in integral multiples other than for nominal amortization of $5,000,000 above 1% or less of the principal amount of such amountIncremental Facility per year) which is shorter than the then remaining weighted average life of the Revolving Facility, (iii) the aggregate Energy Hedging Commitment terms and conditions applicable to any Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the preceding clause (ii)) shall be the same as those applicable to the Revolving Facility other than such terms and conditions which do not be increased apply or relate to an amount greater than any previously existing Facility or other terms reasonably satisfactory to the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersAdministrative Agent, (iviv)(A) no individual Lender’s Commitment may the Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be increased without 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 Lender’s written consent, Incremental Term Facility and (v) the Borrower any Incremental Facility shall execute otherwise be on terms and deliver a Note or Notes as are necessary and requested pursuant to documentation to be determined by the applicable Lenders Company and the Persons willing to reflect provide such Incremental Facility, provided that to the increase in extent such terms and documentation are not consistent with the Energy Hedging Commitmentthen existing Facilities (other than with respect to pricing, (viamortization and maturity) Schedule 2.01 they shall be amended reasonably satisfactory to reflect the revised Commitments Administrative Agent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the Company pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of the relevant Incremental Facility and the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Company (any such other bank or other financial institution or fund being called an “Additional Lender”); , provided that, any such Additional Lender that the Administrative Agent shall have consented (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.6 for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the applicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.1(e) hereof. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.19. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the 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 such other conditions as the parties thereto shall agree. The Borrower shall Borrowers will use the proceeds of the Energy Hedging Incremental Loans solely 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 purpose for which Lenders hereby agree that the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Section 2.11, all Energy Hedging Incremental Loans Agreement shall be subject not apply to the terms and conditions set forth herein including any Applicable Margintransactions effected pursuant to this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower shall have the right, subject to the terms and conditions Except as set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, so long as an “Energy Hedging Incremental Loan”); 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 theretohas occurred and is continuing, (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 Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the at any one time prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 increase in the Energy Hedging CommitmentCommitment Termination Date, 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 increase in the Energy Hedging Commitment shall applyBorrowers may request, 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise procedure set forth in this Section 2.112.1.7, the addition of the Incremental Facility, which shall be added to and increase the original aggregate amount of the Commitments and pursuant to which the Borrowers may request incremental Loans (each, an “Incremental Loan”) pursuant to Section 2.1.1; provided, however, that the sum of all Incremental Commitments shall not exceed the Maximum Incremental Amount. Borrowers shall give Agent not less than thirty (30) days prior written notice of their request for the Incremental Facility. The Incremental Facility shall:
(i) have such upfront fee as may be agreed by the Borrowers and the Lender(s) providing such Incremental Loans pursuant to the provisions of this Section 2.1.7; and
(ii) except as specifically provided in this Section 2.1.7, otherwise have all of the same terms and conditions as the Loans. In addition, unless otherwise specifically provided in this Agreement, all Energy Hedging references in the Loan Documents to Loans shall be deemed, as the context requires, to include references to Incremental Loans made pursuant to this Agreement. Borrowers shall have no obligation to offer to existing Lenders the opportunity to subscribe to the Incremental Facility, and no existing Lender will have an obligation to make an Incremental Loan unless and until it expressly commits to do so in writing. Borrowers shall have the right to cause the Incremental Loans to be made by a new Lender identified by Borrowers that is an Eligible Assignee and is reasonably acceptable to Agent, provided that any such new Lender shall be required to comply with Section 13.3. Incremental Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to (y) an amendment (each, an “Incremental Loan Amendment”) to this Agreement executed by the Borrowers, each Lender or other financial institution approved by the Agent (which approval shall not be unreasonably withheld) agreeing to provide such Incremental Commitment (and no other Lender shall be required to execute such amendment) and the Agent, and (z) any amendments to the other Loan Documents (executed by the relevant Obligor and Agent only) as the Agent shall reasonably deem appropriate to effect such purpose. Notwithstanding anything to the contrary contained herein, the effectiveness of such Incremental Loan Amendment shall be subject to the terms and satisfaction of the conditions set forth herein including any Applicable Marginin Sections 6.2(a), (b) and (c), unless waived by Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Steinway Musical Instruments Inc)
Incremental Facility. (a) From The Borrower may from time to time upon at least 30 days’ prior written notice amend this Agreement in order to provide to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the LendersRevolving Facility or any other existing revolving facility hereunder (each, an “Incremental Revolving Facility”) and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase provided that (i) the aggregate principal amount of the Energy Hedging Commitment Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (any such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, determined (ix) 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 on a pro forma basis after giving effect theretoto 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 2.25:1.00, (ii) such increase must each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000 and in integral multiples of $5,000,000 above such amount25,000,000, (iii) the aggregate 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by be in pro forma compliance with the applicable Lenders to reflect the increase financial covenant set forth in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 7.1 after giving effect to the increase 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 Energy Hedging Commitmentevent that any tranche of an Incremental Term Facility is used to finance a 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 related to such 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 Energy Hedging Lender will hold its pro rata share 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 (based on its share ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the revised Energy Hedging Commitmentcommitments 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) of outstanding Energy Hedging Loansthat have more than four different maturity dates.
(b) Any such increase in An Incremental Facility shall be made available hereunder upon delivery to the Energy Hedging Commitment shall apply, at the option Administrative Agent of notice thereof executed by the Borrower. Any additional bank, to (x) the Energy Hedging Commitment of one or more financial institution, 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such other bank bank, financial institution, existing Lender or other financial institution Person being called an “Additional Lender”); provided that) and, any such Additional Lender if not already a Lender, shall (Ai) must be approved by subject to the Borrower and the Facility Agent consent (such approval not to be unreasonably withheldwithheld 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 each Energy Hedging Issuing Bank and (Bii) must 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 execution the Borrower, each Additional Lender and delivery the Administrative Agent. No Incremental Facility Amendment shall require the consent of an Assignment and Assumption 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; provided further that. 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 no event or at any time shall any Borrower Affiliate or Macquarie Affiliate be a Lender for any Energy Hedging Incremental Loans 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 means of assignment or participation pursuant to Section 10.07).
(c) The Borrower shall use the proceeds of Administrative Agent and the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11Additional Lenders, all Energy Hedging Incremental Loans shall be subject to the terms satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and conditions set forth herein including after giving effect to the incurrence of any Applicable MarginIncremental 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 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 related to such 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) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the ClosingSecond Amendment Effective Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent 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 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 Revolving Facility (any such increase referred to hereineach, as an “Energy Hedging Incremental LoanRevolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); provided that, that (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanrequest, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Article VI determined on a minimum 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 the Available Incremental Amount (as determined as of the date of incurrence of any applicable Incremental Facility). Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 and 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 integral multiples 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 $5,000,000 above greater than 5% of the original principal amount of such amountIncremental 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 aggregate Energy Hedging Commitment Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall not be increased the same as those applicable to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority LendersRevolving Facility, (iv) no individual Lender’s Commitment may the Applicable Margin relating to any Incremental Term Facility shall be increased without determined by the Borrower and the Lenders providing such Lender’s written consent, Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders Persons willing to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any provide 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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing LendersIncremental Term Facility; provided that each Energy Hedging Issuing Bank to the extent such terms and any Lender whose Energy Hedging Commitment is documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being increased must consent in writing thereto and/or (y) agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the creation Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of a new Energy Hedging Commitment to one or more bank the relevant Incremental Facility and the Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); provided thatthat the Administrative Agent, any such Additional Lender (A) must be approved by the Borrower Swingline Lender, and the Facility Agent Issuing Bank shall have consented (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.4 for an assignment of Loans to such Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.2(b) hereof. The Incremental Amendment may, without need for the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.23. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all references to the 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 shall will use the proceeds of the Energy Hedging 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 any Incremental Revolving Facility, each Lender’s and each Additional Lender’s, if any, Pro Rata Share of each of the Revolving Commitments and the Revolving Loans solely 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 furtherance of the foregoing and on the Incremental Facility Closing Date, each Lender and each Additional Lender, if any, shall be deemed to have irrevocably sold, transferred, conveyed and assigned to each other Lender and each other Additional Lender, if any (and without, for the purpose for which avoidance of doubt, increasing or decreasing the proceeds aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall hold a Pro Rata Share of each of the Energy Hedging Revolving Commitments and Revolving Loans may be usedequal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) From The Borrower may at any time or from time to time upon at least 30 days’ prior written after the Closing Date, by notice to the Facility Administrative Agent (which notice whereupon the Administrative Agent shall be promptly transmitted by the Facility Agent deliver a copy to each of the Lenders), the Borrower shall have the rightrequest one or more additional tranches of term loans, subject to the terms and conditions set forth belowrevolving facilities or letter of credit facilities (each, to increase the aggregate amount of the Energy Hedging Commitment (any such increase referred to herein, as an “Energy Hedging Incremental LoanFacility”); , provided that, that (i) at the time of any such request and upon after the effectiveness of any such Energy Hedging Incremental LoanAmendment referred to below, no Default or Event of Default shall exist or would exist after giving effect theretohave occurred and be continuing, (ii) such increase must the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a minimum amount pro forma basis as of $50,000,000 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 in integral multiples any revolving commitment under such Incremental Facility (to the extent not available to issue letters of $5,000,000 above credit) had been fully used on the last day of such amount, period and (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than Consolidated Leverage Ratio determined on a pro forma basis as of the Maximum Energy Hedging 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 Facility Amount without had been outstanding on the prior written consent last day of the Majority Lenderssuch period, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended less than 2.5 to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of 1.0. Each Incremental Facility shall be in an increase in the Energy Hedging Commitment, the Borrower will prepay aggregate principal amount that is not less than $50,000,000 (provided that any such prepayment 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 subject to Section 2.03), one or not more existing Energy Hedging Loans in an amount necessary such that after giving effect than 3 requests for Incremental Facilities. Notwithstanding anything to the increase in contrary herein, the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share aggregate amount of the revised Energy Hedging CommitmentIncremental Facilities (including the Incremental Revolving Facility) shall not exceed $200,000,000. Any Incremental Facility (a) shall rank pari passu in right of outstanding Energy Hedging payment and of security with the Loans.
, (b) Any shall not mature earlier than the Maturity Date or have a weighted average life (if applicable) which is shorter than the then remaining average life of the Loans, and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such increase Incremental Facility, provided that (A) to the extent such terms and documentation are not consistent with the Facilities (other than with respect to pricing, amortization and maturity) they shall 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 to the lenders under any applicable Facility (which, for any Incremental Facility consisting of a term loan facility shall be the Term Facility and for any Incremental Facility consisting of a revolving loan facility shall be the Incremental Revolving Facility) or the Incremental Facility, as applicable, in the Energy Hedging Commitment shall apply, at primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any Incremental Facility exceeds the option Applicable Margin relating to the applicable Facility immediately prior to the effectiveness of the Borrowerapplicable Incremental Amendment, the Applicable Margin relating to (x) such Facility shall be adjusted to equal the Energy Hedging Commitment 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 one or more existing Lenders; provided that each Energy Hedging Issuing Bank the relevant Incremental Facility and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more bank Lenders or other financial institution Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by the Borrower (any such other bank or other financial institution or fund being called an “Additional Lender”); , provided that, any such Additional Lender that the Administrative Agent shall have consented (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must to such Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be required under Section 10.6 for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become a Lender Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by execution the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, 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 the Administrative Agent pursuant to Section 10.07).
10.1(e) hereof. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (ceach, an “Incremental Facility Closing Date”) of each of the 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 such other conditions as the parties thereto shall agree. The Borrower shall will use the proceeds of the Energy Hedging Incremental Loans solely 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 purpose for which Lenders hereby agree that the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Section 2.11, all Energy Hedging Incremental Loans Agreement shall be subject not apply to the terms and conditions set forth herein including any Applicable Margintransactions effected pursuant to this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. (a1) From The parties hereto agree that any Borrower may, at any time to time upon at least 30 days’ prior written notice to the Facility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the 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 such increase referred to herein, as an “Energy Hedging Incremental Loan”); provided that, (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, that no Default or Event of Default has occurred and is continuing), give notice in writing to the Agent as provided in this Section 2.12 (each, an “Incremental Facility Notice”) requesting the addition of up to a maximum of two new term credit facilities hereunder (collectively, the “Incremental Facilities” and each, an “Incremental Facility”). Each Incremental Facility shall exist be in a minimum aggregate principal amount of U.S. $25,000,000 (or would exist after giving effect theretothe Equivalent Cdn. $ Amount), provided that the aggregate principal amount of both Incremental Facilities taken together shall not at any time exceed U.S. $100,000,000 (or the Equivalent Cdn. $ Amount). If the first Incremental Facility is in an amount greater than U.S. $75,000,000 (or the Equivalent Cdn. $ Amount), no further Incremental Facility Notice may be given.
(2) Each Incremental Facility Notice shall specify, in respect of the proposed Incremental Facility (i) one or more Lenders or one or more other financial institutions (which shall be acceptable to the Agent) (each, an “Incremental Lender” and, collectively, the “Incremental Lenders”) that have indicated their willingness to make commitments under such Incremental Facility, (ii) such increase must be Incremental Lender’s proposed commitment in respect of such Incremental Facility (each, a minimum amount of $50,000,000 “Lender’s Incremental Commitment”), and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment shall not be increased to an requested amount greater than of the Maximum Energy Hedging proposed Incremental Facility Amount without (which amount shall be in compliance with Section 2.12(1)). It is understood and agreed that no Incremental Lender shall be obligated to provide an Incremental Commitment and make advances thereunder until such Incremental Lender has executed an Incremental Amending Agreement as provided in Section 2.12(4) and all the prior written consent conditions precedent to the effectiveness of such Incremental Amending Agreement specified in Section 2.12(5) have been satisfied.
(3) The parties hereto agree that the Majority Lenders, terms and conditions of each Incremental Facility shall be as follows:
(iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (va) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitmentamount of each Incremental Facility shall, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.032.12(1), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect be equal to the increase aggregate amount of each Lender’s Incremental Commitment in respect of such Incremental Facility (collectively, the Energy Hedging “Incremental 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 increase in the Energy Hedging Commitment accommodations under each Incremental Facility shall applybe made available as Eurodollar Rate advances, at the option of the BorrowerABR advances, to (x) the Energy Hedging Commitment of one Drawings 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) the creation of Canadian Prime Rate advances or a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).combination thereof;
(c) The Borrower the Borrowers shall use the proceeds of the Energy Hedging accommodations under each Incremental Loans Facility solely for working capital purposes, general corporate purposes, to fund Investments permitted under clauses (e), (g) and (h) of the purpose for which definition of “Permitted Investments” or to fund Distributions permitted under Sections 8.02(g)(v)(x) and 8.02(g)(vi)(x), provided that the proceeds of accommodations under each Incremental Facility shall not be used for any purpose which would constitute the Energy Hedging Loans may be used.giving of unlawful financial assistance by any Subsidiary incorporated in England and Wales under sections 151-158 Companies A▇▇ ▇▇▇▇ (an English statute);
(d) Except the Borrowers shall not, directly or indirectly, use the proceeds of accommodations under any Incremental Facility to repay or prepay Accommodations Outstanding under the Operating Facility or Term B Facility.
(e) the Incremental Facilities shall not revolve and any amount repaid or prepaid thereunder shall not be reborrowed and shall permanently reduce the Incremental Commitment under the applicable Incremental Facility by the amount repaid or prepaid, as otherwise set forth the case may be;
(f) subject to Section 2.12(3)(j), the accommodations outstanding under any Incremental Facility shall have a final maturity date that is no earlier than the Relevant Repayment Date in respect of the Operating Facility;
(g) the interest payable on a type of advance under any Incremental Facility (the “Applicable Incremental Rate”) shall be no greater than the sum of (i) the interest payable on the same type of advance under the Term B Facility pursuant to the provisions of this Agreement at the relevant time (the “Applicable Term B Rate”), and (ii) 0.25%; notwithstanding the foregoing, the Applicable Incremental Rate may exceed the Applicable Term B Rate immediately prior to the effectiveness of the applicable Incremental Amending Agreement by more than 0.25%, provided, however, that the Applicable Term B Rate shall be adjusted automatically to be equal to the Applicable Incremental Rate minus 0.25%, with such adjustment to take effect upon the effectiveness of the applicable Incremental Amending Agreement;
(h) the Agent shall give each Term B Lender prompt written notice of any adjustment to the Applicable Term B Rate made pursuant to Section 2.112.12(3)(g).
(i) the Incremental Facilities shall rank pari passu in right of payment and of security with the Operating Facility, the Term B Facility and the obligations pursuant to the Eligible Hedging Agreements, if any;
(j) each Incremental Facility shall be treated substantially the same as (and in any event no more favourable than) the Term B Facility (including in respect of mandatory prepayments and optional repayments or prepayments and covenants); provided that (i) if each Incremental Lender participating in an Incremental Facility is resident in Canada or is an “authorized foreign bank” which will receive all Energy Hedging amounts paid or credited to it under any Incremental Loans Facility in respect of its Canadian banking business, in each case, for the purposes of the ITA and only SGC is permitted to request advances thereunder, such Incremental Facility may have an amortization schedule which is more favourable to the Incremental Lenders participating in such Incremental Facility than the amortization schedule applicable to the Term B Facility pursuant to Section 2.04(3), and (ii) in all other cases and subject to Section 2.12(3)(k), such Incremental Facility must have an amortization schedule which is not more favourable to the Incremental Lenders participating in such Incremental Facility than the amortization schedule applicable to the Term B Facility pursuant to Section 2.04(3) and the final maturity date shall be no earlier than the Relevant Repayment Date in respect of the Term B Facility;
(k) the terms and conditions of each Incremental Facility (including with respect to maturity, amortization and mandatory prepayments) shall to the extent possible be structured to avoid the risk that interest payments thereon would be subject to any withholding tax (it being understood that any payments of interest made to “authorized foreign banks” will be subject to gross-up and indemnity provisions contained in Section 11.07); and
(l) such other terms and conditions agreed to by the Borrowers, the Incremental Lenders and the Agent, which terms and conditions shall not, taken as a whole, in any event, subject to the proviso in Section 2.12(3)(j), be more onerous or more extensive than the terms and conditions set forth herein including out in this Agreement.
(4) The parties hereto agree that in order to establish an Incremental Facility, an amending agreement to this Agreement in form and substance satisfactory to the Agent (an “Incremental Amending Agreement”) shall be executed by the Borrowers, the Incremental Lenders and the Agent and, without the consent of any Applicable Marginother Lender Parties, shall effect such amendments to this Agreement and to the other Credit Documents as may be necessary or desirable, in the opinion of the Agent, to establish such Incremental Facility in accordance with the provisions of this Section 2.12.
Appears in 1 contract
Incremental Facility. (a) From At any time prior to time upon at least 30 days’ prior the second anniversary of the date hereof, the Borrowers may, by written notice ("INCREMENTAL FACILITY NOTICE") to the Facility Administrative Agent (which notice shall be promptly transmitted by the Facility Agent deliver a copy to each of the LendersLender Parties), request 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 such increase referred to herein, as an “Energy Hedging Incremental Loan”); 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 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 Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (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 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 increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment addition of one or more additional term facilities (each an "INCREMENTAL FACILITY" and together, the "INCREMENTAL FACILITIES"). Each Incremental Facility shall be in an aggregate principal amount of not less than $100 million and all of which together shall be in an aggregate principal amount not to exceed $650 million. The Incremental Facilities
(i) shall be a Term Facility for all purposes hereunder (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) and (ii) shall have such pricing as may be agreed by the Borrowers and the Lender Parties providing such Incremental Facilities and shall otherwise have the same terms as the Term Advances (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) including the same Termination Date and the same proportional amortization as the remaining Term Advances or such later termination date and longer proportional amortization terms as shall be agreed by the Borrowers and the Incremental Lenders providing such Incremental Facility. Any such Incremental Facility shall be offered, first, on a pro rata basis to existing Lenders; provided , and to the extent that each Energy Hedging Issuing Bank and such Lenders do not commit within 15 days of the Incremental Facility Notice for any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) such Incremental Facility, the creation of a new Energy Hedging Commitment Borrowers shall have the right to arrange for one or more banks or other financial institutions acceptable to the Agents (any such bank or other financial institution (any such other bank or other financial institution being called institution, an “Additional Lender”); provided that"ADDITIONAL LENDER") to extend commitments to provide the Incremental Facility in an aggregate amount equal to the amount, any such Additional Lender (A) must be approved if any, by which the commitments by the Borrower and Lenders to provide such Incremental Facility is less than the amount thereof requested by the Borrowers pursuant to the terms of this Section 2.05(c). Commitments in respect of an Incremental Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must shall become a Lender "Commitments" 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 Section 10.07).
(c) The Borrower shall use the proceeds an amendment hereto executed by each of the Energy Hedging Borrowers, each Lender Party agreeing to provide such Commitment, each Additional Lender, if any, the Issuing Banks and the Agents and such amendments to the other Loan Documents as the Agents shall reasonably deem appropriate to effect such purpose. The effectiveness of such amendment and the commitments in respect of each Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans Facility shall be subject to the terms and satisfaction on the date thereof and, if different, on the date on which Advances under the Incremental Facility are made, of each of the conditions set forth herein including any Applicable Marginin Section 3.02.
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Sources: Credit Agreement (Broadwing Inc)
Incremental Facility. (a) From The Company may from time to time upon at least 30 days’ prior written notice amend this Agreement in order to provide to the Facility Agent Company additional revolving loan facilities (which notice shall be promptly transmitted by the Facility Agent to each of the Lenderseach, an “Incremental Revolving Loan Facility”) and additional term loan facilities (each, an “Incremental Term Loan Facility”), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase provided that (i) the aggregate principal amount of the Energy Hedging Commitment Incremental Facilities shall not exceed $400,000,000 and (any such increase referred ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the Revolving Credit Facility on a pari passu basis. Each Incremental Facility must have a final maturity on or after the Revolving Credit Termination Date and an average life (if an Incremental Term Facility) which is at least as long as the remaining term of the Revolving Credit Facility. Incremental Facilities will be entitled to hereinprepayments and voting rights on the same basis as the Revolving Credit Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, as an “Energy Hedging Incremental Loan”); provided that, (i) at after giving effect thereto and the time use of any such request and upon the effectiveness of any such Energy Hedging Incremental Loanproceeds 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 pro forma basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made pursuant to such Incremental Facility and the Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of Incremental Facilities may be used only for the purposes specified in subsections 4.3 and 7.3.
(b) An Incremental Facility shall exist or would exist after giving effect theretobe made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Company and the Administrative Agent) identified as “Incremental Lenders” therein who have executed such Incremental Facility Activation Notice. Upon the Incremental Facility Effective Date specified in an Incremental Facility Activation Notice, the Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of such Incremental Lenders, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amountthe applicable Incremental Facility Effective Date, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging applicable Incremental Facility Amount without the prior written consent of the Majority LendersMaturity Date, (iv) no individual Lender’s Commitment may be increased without the amortization schedule or revolving credit period, as applicable, applicable to such Lender’s written consentIncremental Facility, (v) the Borrower shall execute whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and deliver a Note or Notes are entitled to share in mandatory prepayments as are necessary specified in subsection 8.6 and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 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 be amended otherwise duly completed. Each Incremental Lender that is a signatory to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging CommitmentIncremental Facility Activation Notice severally agrees, the Borrower will prepay (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 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 increase 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) 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 Section 10.07).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including of this Agreement, to make Incremental Loans to the Company on the date or during the periods specified in such Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be construed to obligate any Applicable MarginLender not party to such Incremental Facility Activation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. (a) From time to time upon at least 30 days’ prior written notice The Borrower may request (but subject, in each case, to the Facility Agent conditions set forth in clause (which notice shall be promptly transmitted by b) below and the Facility Agent 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 in the form of commitments to make delayed draw term loans, in an aggregate principal amount not to exceed the Available Incremental Amount (each of such facility, an “Incremental Facility”); provided that prior to the Lenders)Delayed Draw Termination Date, the Borrower shall have first either (x) drawn the rightDelayed Draw Commitments in full or (y) terminated all unused Delayed Draw Commitments before requesting an Incremental Facility. No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (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.
(b) 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 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 terms and conditions set forth belowconsent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), to increase become an Incremental Lender in connection with the aggregate amount 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 any such Incremental Facility, the Borrower and the Administrative Agent shall have signed an Incremental Joinder. In addition, with the consent of the Energy Hedging Commitment 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 2.27 (any such increase referred to hereinamendment, as an “Energy Hedging Incremental LoanAmendment”)) 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 (c) are satisfied; provided that, (i) at that to the time of extent agreed to by the Lenders providing any such request Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and upon “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the effectiveness of any lenders providing such Energy Hedging Incremental LoanFacility; provided further that the condition set forth in Section 5.2(c) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default shall exist pursuant to Section 8.1(a) or would exist (f) has occurred or is continuing;
(iv) after giving pro forma effect theretoto such Incremental Facility and the use of proceeds thereof for such Incremental Facility, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iiiA) the aggregate Energy Hedging Commitment 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 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 (y) the proceeds of any such Incremental Facility incurred at such time shall not be increased to an amount greater than netted from the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, Consolidated First Lien Net Leverage Ratio);
(v) the Borrower terms and conditions with respect to any such Incremental Loan shall execute and deliver a Note or Notes as are necessary and requested be determined by the applicable Borrower and the Lenders thereunder, but shall not be, except to reflect the increase extent permitted by Section 2.27(b)(ix) below, materially more favorable (taken as a whole) to the Lenders of such Incremental Loans than the existing terms and conditions in this Agreement and the Energy Hedging Commitment, other Loan Documents (taken as a whole) that apply to the Lenders of the then outstanding Loans (unless such existing terms and conditions contained in this Agreement and the other Loan Documents are amended so as to conform to the materially more favorable terms and conditions that apply to the Lenders of the Incremental Loans or are otherwise reasonably satisfactory to the Administrative Agent);
(vi) Schedule 2.01 shall (A) subject to Section 2.27(b)(ix) below, any pricing (including, for the avoidance of doubt, 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 amended 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 reflect the revised Commitments 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 Lenders 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 (viiD) if 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 outstanding at Loans, including by amending the time schedule of an increase in the Energy Hedging Commitment, the Borrower will prepay (amortization payments relating to any existing tranche of Loans; provided that any such prepayment 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 (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 subject 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 2.032.27(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, one 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 more existing Energy Hedging Loans in an amount necessary such that otherwise after giving effect to the increase in the Energy Hedging Commitmentestablishment of any such Incremental Facility, each Energy Hedging Lender will hold its pro rata share (based on its share which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase Security Documents and executing and delivering all documents, instruments and legal opinions 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) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved connection therewith reasonably requested by the Borrower and Administrative Agent. This Section 2.27 supersedes any provisions in Section 10.1 to the Facility Agent contrary (such approval not to other than amendments of provisions that are described in Section 10.1(a), which shall be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must become a Lender under this Agreement governed 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 Section 10.0710.1).
(c) The Borrower shall use the proceeds of the Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to the terms and conditions set forth herein including any Applicable Margin.
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