Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Skullcandy, Inc.)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right(1) The parties hereto agree that any Borrower may, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) 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 have occurred be in a minimum aggregate principal amount of U.S. $25,000,000 (or would occur the 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 time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee Equivalent Cdn. $ Amount). If the first Incremental Facility is in an amount equal to one half of one percent greater than U.S. $75,000,000 (0.50%or the Equivalent Cdn. $ Amount), no further Incremental Facility Notice may be given.
(2) Each Incremental Facility Notice shall specify, in respect of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the proposed Incremental Revolving Facility: Facility (i) one or more Lenders or one or more other financial institutions (which shall be acceptable to the loans made Agent) (each, an “Incremental Lender” and, collectively, the “Incremental Lenders”) that have indicated their willingness to make commitments under the such Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basisFacility, (ii) such Incremental Revolving Lender’s proposed commitment in respect of such Incremental Facility (each, a “Lender’s Incremental Commitment”), and (iii) the requested amount of the proposed Incremental Facility (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 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 terms and conditions of each Incremental Facility shall be obtained from Lenders existing on as follows:
(a) the Closing Date and such amount of each Incremental Facility shall, subject to Section 2.12(1), be equal to the aggregate amount of each Lender’s Incremental Commitment Percentage in respect of such Incremental Revolving Facility will (collectively, the “Incremental Commitment”);
(b) accommodations under each Incremental Facility shall be made available as set forth on Eurodollar Rate advances, ABR advances, Drawings or Canadian Prime Rate advances or a combination thereof;
(c) the signature page heretoBorrowers shall use the proceeds of accommodations under each Incremental Facility solely for working capital purposes, general corporate purposes, to fund Investments permitted under clauses (e), (iiig) and (h) of the 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 giving of unlawful financial assistance by any Subsidiary incorporated in England and Wales under sections 151-158 Companies A▇▇ ▇▇▇▇ (an English statute);
(d) the Borrowers shall execute amended and restated Revolving Credit Notes in favor not, directly or indirectly, use the proceeds of accommodations under any Incremental Facility to repay or prepay Accommodations Outstanding under the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, Operating Facility or Term B Facility.
(ive) the conditions in Section 8.2 Incremental Facilities shall have been satisfied, (v) Administrative Agent not revolve and any amount repaid or prepaid thereunder shall have received evidence that all requisite corporate action not be reborrowed and proceedings in connection with shall permanently reduce the Incremental Revolving Commitment under the applicable Incremental Facility by the amount repaid or prepaid, as the case may be;
(f) subject to Section 2.12(3)(j), the accommodations outstanding under any Incremental Facility shall have been taken which evidence 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 2.12(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 amounts paid or credited to it under any Incremental 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 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 Administrative Agentthe Agent (an “Incremental Amending Agreement”) shall be executed by the Borrowers, the Incremental Lenders and (vi) Administrative the Agent and, without the consent of any other Lender Parties, shall have received from Borrowers and any Guarantor effect such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment amendments to this Agreement or any and to the other document Credit Documents as may be necessary or desirable, in the opinion of the Agent, to incorporate establish such Incremental Facility in accordance with the terms provisions of any new Incremental Revolving Facility herein thereinthis Section 2.12.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at At any time prior to the end sixth anniversary of the TermEffective Date, to requestthe U.S. Borrower may, upon ten (10) Business Days prior written notice, an increase by notice to the Maximum Revolving Advance Amount U.S. Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loans (the “Incremental Revolving FacilityTerm Loans”) up to $50,000,000 (an aggregate increase of $21,250,000); provided howeverthat both at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, that: no Default shall exist and at the time that any such Incremental Term Loans are made (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (bafter giving effect thereto) no Default or Event of Default shall have occurred or would occur 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 time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) beginning of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paidmost recent period for testing compliance therewith. The following terms and conditions shall apply to the Incremental Revolving Facility: Term Loans (i) shall be in an aggregate principal amount not exceeding (in the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basisaggregate) $250,000,000, (ii) such Incremental shall rank pari passu in right of payment and of security with the Revolving Facility shall be obtained from Lenders existing on Loans and the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoTerm Loans, (iii) Borrowers shall execute amended not mature earlier than the Term Loan Maturity Date (but may, subject to clause (iv) below, have amortization and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amountcommitment reductions prior to such date), (iv) shall not have a weighted average life that is shorter than that of the conditions in Section 8.2 shall have been satisfiedInitial Term Loans, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings not accrue interest at a rate or rates in connection with excess of the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory interest rates applicable to Administrative Agent, the Initial Term Loans and (vi) Administrative Agent shall have received from Borrowers otherwise be treated no more favorably than the Initial Term Loans (in each case, including with respect to mandatory and any Guarantor such voluntary prepayments and financial covenants); provided that the terms and conditions applicable to the Incremental Term Loans may provide for additional or different financial or other documentation as it deems reasonably necessarycovenants applicable only during periods after the Term Loan Maturity Date. Administrative Agent is authorized to enter into, on behalf 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 LendersIncremental Term Loans requested by the U.S. Borrower (but the U.S. Borrower shall not have any obligation to request any Lender to provide any amount of the Incremental Term Loans), the U.S. Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Additional Lender”) to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement or and, as appropriate, the other Loan Documents, executed by Holdings, the U.S. Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the U.S. Administrative Agent. Subject to clauses (i) through (vi) above, the Incremental Facility Amendment may, without the consent of any other document Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the U.S. Administrative Agent, to incorporate effect the terms provisions of this Section. The effectiveness of any new Incremental Revolving Facility herein thereinAmendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth 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 Incremental Term Loans unless it so agrees.
Appears in 1 contract
Incremental Facility. (a) Subject to the terms and conditions set forth hereinin this Section 2.15(a), from time to time 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 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 (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 secured by each of the Mortgages and, for the 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 an obligation to provide or advance any Incremental Loan.
(b) The obligation of Lenders to fund an Incremental Loan shall be subject to satisfaction of the right, following conditions and such other conditions that may be imposed by Administrative Agent or the Lenders at any the time the request for the Incremental Loan is made:
(i) At least forty-five (45) days prior to the end desired funding date of the Termapplicable Incremental Loan, Borrower Representative shall have delivered a written request to request, upon ten Administrative Agent requesting disbursement of such Incremental Loan;
(10ii) Business Days prior written notice, an increase to As of the Maximum Revolving Advance Amount (date on which the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: notice described in clause (a) Borrowers shall not be permitted to make more than two requests for increases during the Termabove is made, and each increase shall not exceed $10,625,000; as of the date on which the requested Incremental Loan is made, both before and after giving pro forma effect thereto (b1) no Default or Event of Default shall have occurred and be continuing, and no Material Adverse Effect shall have occurred or would occur at be continuing with respect to Borrowers, the time ofGuarantor, the Properties or after giving effect tothe Term Loan and (2) 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 representation or warranty is, by its terms, qualified by concepts of materiality, such request; 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 all material respects as of such earlier date;
(ciii) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the The aggregate amount of the increaseTerm Loan Commitments, which fee shall be earned on as increased by the date requested Incremental Loan, do not exceed $177,000,000.00;
(iv) The applicable Joinder Borrower is an Acceptable Entity approved by Lenders in their sole and absolute discretion;
(v) The applicable Joinder Project is an Acceptable Project approved by ▇▇▇▇▇▇▇ in their sole and absolute discretion;
(vi) 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 increase is effectivedocuments, and shall be non-refundable when paid. The following terms have satisfied all of the requirements, set forth in Section 5.1, and conditions shall apply to delivered all other reports, documents and agreements as would have been required if the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on Joinder Borrower had been included as a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing Borrower on the Closing Restatement Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be the Joinder Project had been included as set forth a Property, on the signature page heretoRestatement Date, including a Title Policy and all required quality of 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 Lenders;
(iiiviii) The Borrowers (including the proposed ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇), Guarantor, and any other parties thereto have executed and delivered the Joinder Documents;
(ix) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, have (iv1) the conditions in Section 8.2 shall have been satisfied, (v) paid all fees required to be paid to Administrative Agent shall have received evidence that all requisite corporate action and proceedings Lenders in connection with the requested Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, Loan and (vi2) reimbursed Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter intoLenders for their respective expenses incurred in connection with evaluating and/or making the requested Incremental Loan, on behalf of the including reasonable legal fees and expenses; and
(x) Unless otherwise agreed by Lenders, any amendment to this Agreement the requested Incremental Loan will be funded on or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein thereinbefore August 7, 2028.
Appears in 1 contract
Incremental Facility. Subject (i) The Administrative Borrower may at any time or from time to time, in accordance with and subject to the terms and conditions set forth hereinof this Agreement, Borrowers shall have the right, at any time prior by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten request one or more additional tranches of loans (10other than Revolving Loans) Business Days prior written notice, an increase (each of which shall be deemed separate and independent tranches from the Loans and from each other such additional tranche of loans unless such additional tranche of loans has terms identical in all respects to the Maximum Revolving Advance Amount Loans or any other then existing tranche of additional term loans) to be funded in Dollars (the “Incremental Revolving FacilityLoans”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: that (ax) Borrowers shall not be permitted to make more than two requests for increases during at the Term, and each increase shall not exceed $10,625,000; (b) time of any such request no Default or Event of Default shall have occurred or would occur exist and at the time ofthat any such Incremental Loan is made and, or after giving effect tothereto, such request; no Default or Event of Default shall exist, (y) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (and in minimum increments of $5,000,000 in excess thereof), and the aggregate principal amount of all Incremental Loans funded pursuant to this Section 2.01(b) shall not exceed $90,000,000, and (cz) each Borrower shall pay be in compliance with the financial covenants contained in Sections 11.08 through 11.10, inclusive, on a closing fee Pro Forma Basis after giving effect to the 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 immediately preceding sentence is satisfied after giving effect to any such Incremental Loan Commitment and containing reasonably detailed calculations.
(ii) The Incremental Loans (v) shall rank pari passu or junior in right of payment and of security with the Loans (including, without limitation, with respect to voluntary prepayments and mandatory prepayments), (w) shall not mature earlier than the Maturity Date, (x) shall not have a shorter weighted average life to maturity than the Loans, (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 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 one half 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 one percent this provision, to constitute like amounts of original issue discount (0.50%“OID”)) payable by the Borrowers to the Lenders of the amount of applicable Loans or the increaseIncremental Loans, which fee and rate floors, shall be earned included (with deemed OID being equated to interest based on the date the increase is effective, an assumed four-year life to maturity) and shall be non-refundable when paid. The following terms and conditions shall apply customary arrangement or structuring fees payable to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings (or its Affiliates) in connection with the applicable Loans or the Incremental Revolving Facility shall have been taken which evidence Loans shall be in form and substance satisfactory to Administrative Agentexcluded, and (viz) Administrative Agent shall may otherwise have received terms and conditions different from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf those of the LendersTerm Loan (but subject, in any event, to the terms and provisions of this Agreement pertaining to Incremental Loans); provided that if any such differences are materially more favorable to the Incremental Loans versus the Loan, such differences shall be subject to the 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 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 other document Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary necessary, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to incorporate effect the terms provisions of any new Incremental Revolving Facility herein therein.this Section 2.01
Appears in 1 contract
Sources: Credit Agreement (STG Group, Inc.)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) The Borrower may at any time prior or from time to time after the ClosingSecond Amendment Effective Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten request one or more tranches of term loans (10each an “Incremental Term Facility”) Business Days prior written noticeor an increase in the amount of the Revolving Facility (each, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (; together with the Incremental Term Facilities, each an aggregate increase of $21,250,000“Incremental Facility”); provided howeverthat (i) at the time of such request, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basiscontinuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed 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 $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 greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental same as those applicable to the Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance AmountFacility, (iv) the conditions in Section 8.2 Applicable Margin relating to any Incremental Term Facility shall have been satisfied, be determined by the Borrower and the Lenders providing such Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such Incremental Term Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility and the Lenders or other 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 financial institution or fund being called an “Additional Lender”); provided that the Administrative Agent, the Swingline Lender, and the Issuing Bank shall have received evidence consented (not to be unreasonably withheld) 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 Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 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 (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all requisite corporate action 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 proceedings such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to 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 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 shall have been taken which evidence Closing Date, each Lender and each Additional Lender, if any, shall be in form deemed to have irrevocably sold, transferred, conveyed and substance satisfactory assigned to Administrative Agenteach other Lender and each other Additional Lender, if any (and (vi) Administrative Agent without, for the avoidance of doubt, increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf hold a Pro Rata Share of each of the Lenders, any amendment Revolving Commitments and Revolving Loans equal to this Agreement such Lender’s or any other document as may be necessary to incorporate such Additional Lender’s Pro Rata Share of the terms of any new Incremental Aggregate Revolving Facility herein thereinCommitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers the Borrower shall have the right, at any time prior 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 end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount Term Loan (the “Incremental Revolving Facility”) by an aggregate amount of up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid25,000,000. The following terms and conditions shall apply to the Incremental Revolving Facility: (ia) the loans made under the Incremental Revolving Facility shall constitute Obligations and Credit Party Obligations and will be secured and guaranteed with the other Obligations Loans on a pari passu basis, (iib) 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 Revolving 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 existing on or from other banks, financial institutions or investment funds, in each case in accordance with the Closing Date and such Lender’s Commitment Percentage terms set forth below, (f) the proceeds of such Incremental Revolving Facility will be as set forth on the signature page heretoused for purposes consistent with Section 3.11 hereof, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (ivg) the conditions to Extensions of Credit in Section 8.2 4.2 shall have been satisfied, (vh) the Administrative Agent and the Lenders shall have received evidence that all requisite corporate action from the Borrower updated financial projections and proceedings an Officers’ Certificate, in connection with the Incremental Revolving Facility shall have been taken which evidence shall be each case in form and substance satisfactory to Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility, no Default or Event of Default shall have occurred and be continuing and that the Borrower will be in pro forma compliance with the financial covenants set forth in Section 5.9 and (vii) the Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems may reasonably necessaryrequest, including without limitation, an 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 Incremental Facility, the amount of the Incremental Facility shall exceed the commitments that the existing Lenders are willing to provide with respect to the Incremental Facility, then the 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 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 document Credit Document as may be necessary to incorporate the terms of any the new Incremental Revolving Facility herein therein, solely to the extent such terms are consistent with the terms as set forth in this Section 2.5.
Appears in 1 contract
Sources: Credit Agreement (Amedisys Inc)
Incremental Facility. Subject (a) The Borrower may, from time to time request that the aggregate amount of the Commitments be increased (x) by having an existing Lender agree in its sole discretion to increase its then existing Commitment (an “Increase Lender”) and/or (y) by adding as a new Lender hereunder any Person (each such Person, an “Assuming Lender”) approved by the Administrative Agent and each Issuing Bank (in each case, such approval not to be unreasonably withheld or delayed) that shall agree to provide a Commitment hereunder (each such proposed increase pursuant to the terms foregoing clauses (x) and conditions set forth herein(y) being a “Commitment Increase”), Borrowers shall have the rightin each case, at any time prior by notice to the end Administrative Agent specifying the amount of the Termrelevant Commitment Increase, the Increase Lender(s) and/or Assuming Lender(s) providing such Commitment Increase and the date on which such Commitment Increase is to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount be effective (the “Incremental Revolving FacilityIncrease Date”) up to $50,000,000 (an aggregate increase ), which shall be a Business Day at least three Business Days after delivery of $21,250,000)such notice; provided provided, however, that: :
(ai) Borrowers the minimum amount of each Commitment Increase shall not be permitted to make more than two requests for increases during $10,000,000 or a larger multiple of $5,000,000;
(ii) the Termaggregate amount of all Commitment Increases hereunder, and each increase shall not exceed $10,625,000; 3,000,000,000.
(biii) both at the time of any such request and upon the effectiveness of any Commitment Increase, no Default or Event of Default shall have occurred and be continuing or would occur at result from such proposed Commitment Increase (provided that, with respect to any Commitment Increase the time ofprimary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this Section 2.18(a)(iii) shall be that no Event of Default under clauses (a) or (b) of Article 7 or, solely with respect to the Borrower, clauses (h) or (i) of Article 7, shall exist after giving effect to such Commitment Increase);
(iv) the representations and warranties set forth in Article 3 and in the other Loan Documents shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) immediately prior to, and after giving effect to, such requestCommitment Increase as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date (provided that, with respect to any Commitment Increase the primary purpose of which is to finance a Limited Condition Transaction, the only representations and warranties, the breach or inaccuracy of which shall be a condition to funding, shall be customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Commitment Increase); and
(v) any Commitment Increase shall be on terms that are identical to the existing Commitments. Each notice by the Borrower under this paragraph shall be deemed to constitute a representation and warranty by the Borrower as to the matters specified in clause (civ) Borrower above. Notwithstanding anything herein to the contrary, no Lender shall pay a closing fee have any obligation hereunder to become an Increase Lender and any election to do so shall be in an amount equal to one half the sole discretion of one percent each Lender.
(0.50%b) Each Commitment Increase (and the increase of the amount Commitment of each Increase Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become effective as of the increaserelevant Increase Date upon receipt by the Administrative Agent, which fee shall be earned on the date the increase is effectiveor prior to 12:00 noon, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: New York City time, on such Increase Date, of (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage certificate of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) a Financial Officer stating that the conditions in with respect to such Commitment Increase under this Section 8.2 shall 2.18 have been satisfied, (vii) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be an agreement (a “Commitment Increase Supplement”), in form and substance reasonably satisfactory to the Borrower, each Increase Lender, each Assuming Lender and the Administrative Agent, pursuant to which, effective as of such Increase Date, as applicable, the Commitment of each such Increase Lender shall be increased or each such Assuming Lender shall undertake a Commitment, in each case duly executed by such Increase Lender or Assuming Lender, as the case may be, and the Borrower and acknowledged by the Administrative Agent and (viiii) such certificates, legal opinions or other documents from the Borrower reasonably requested by the Administrative Agent in connection with such Commitment Increase. Upon the Administrative Agent’s receipt of a fully executed Commitment Increase Supplement from each Increase Lender and/or Assuming Lender referred to in clause (ii) above, together with the certificates, legal opinions and other documents referred to in clauses (i) and (iii) above, the Administrative Agent shall have received from Borrowers record the information contained in each such agreement in the Register and any Guarantor such other documentation as it deems reasonably necessarygive prompt notice of the relevant Commitment Increase to the Borrower and the Lenders (including, if applicable, each Assuming Lender). At the election of the Administrative Agent is authorized in its sole discretion, any Loans outstanding on such Increase Date shall be reallocated among the Lenders (with Lenders making any required payments to enter intoeach other) to the extent necessary to keep the outstanding Loans ratable with any revised pro rata shares of such Lenders arising from any nonratable increase in the Commitments under this Section 2.18. Upon each such Commitment Increase, on behalf the participation interests of the Lenders in the then outstanding Letters of Credit shall automatically be adjusted to reflect, and each Lender (including, if applicable, each Assuming Lender) shall have a participation in each such Letter of Credit equal to, the Lenders, ’ respective Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit after giving effect to such increase.
(c) This Section shall supersede any amendment provisions in Section 2.15 or Section 9.02 to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein thereincontrary.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions Except as set forth hereinbelow, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) so long as no Default or Event of Default shall have has occurred or would occur and is continuing, at any one time prior to the time ofCommitment Termination Date, or after giving effect toBorrowers may request, such request; and (c) Borrower shall pay a closing fee pursuant to the procedure set forth in an amount equal to one half of one percent (0.50%) this Section 2.1.7, the addition of the Incremental Facility, which shall be added to and increase the original aggregate amount of the increaseCommitments and pursuant to which the Borrowers may request incremental Loans (each, which fee an “Incremental Loan”) pursuant to Section 2.1.1; provided, however, that the sum of all Incremental Commitments shall be earned on not exceed the date Maximum Incremental Amount. Borrowers shall give Agent not less than thirty (30) days prior written notice of their request for the increase is effective, and shall be non-refundable when paidIncremental Facility. The following 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 references in the Loan Documents to Loans shall apply 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 Revolving Facility: (i) , 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 loans made under right to cause the Incremental Revolving Facility 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 constitute Obligations and will be secured and guaranteed 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 Obligations on a pari passu basis, financial institution approved by the Agent (iiwhich approval shall not be unreasonably withheld) agreeing to provide such Incremental Revolving Facility Commitment (and no other Lender shall be obtained from Lenders existing on required to execute such amendment) and the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (viz) Administrative any amendments to the other Loan Documents (executed by the relevant Obligor and Agent only) as the Agent shall have received from Borrowers and any Guarantor reasonably deem appropriate to effect such other documentation as it deems reasonably necessarypurpose. Administrative Agent is authorized Notwithstanding anything to enter intothe contrary contained herein, on behalf the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of the Lendersconditions set forth in Sections 6.2(a), any amendment to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein(b) and (c), unless waived by Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Steinway Musical Instruments Inc)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers the Borrower shall have the right, at any time prior 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 end of the Term, to request, upon ten Revolving Committed Amount (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid150,000,000. The following terms and conditions shall apply to the each Incremental Revolving Facility: (ia) the loans made under the any such Incremental Revolving Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (iib) 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 Revolving Term Loan, (c) each Incremental Facility shall be obtained from Lenders existing on in a minimum principal amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof, (d) the Closing Date and proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such Lender’s Commitment Percentage of promissory notes as are necessary to reflect the Additional Loans under any such Incremental Revolving Facility will be as set forth on the signature page heretoFacility, (iiif) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amountbefore any Additional Loans are made, (iv) the conditions to Extensions of Credit in Section 8.2 4.2 shall have been satisfied, (vg) Administrative Agent no Default or Event of Default shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement then exist or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein.would
Appears in 1 contract
Sources: Credit Agreement (Belden Inc.)
Incremental Facility. Subject to (a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the terms and conditions set forth herein, Borrowers Borrower shall have the right, at any time prior and from time to time after the end of Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Term“Incremental Term Loan Commitments”), and (ii) to request, upon ten (10) Business Days prior written notice, an increase request new commitments under one or more new revolving facilities to the Maximum Revolving Advance Amount be included in this Agreement (the “Incremental Revolving FacilityCommitments”) up (together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) either (x) after giving pro forma effect to $50,000,000 any Incurrence or Discharge of Indebtedness on the date the applicable Incremental Commitment Amendment (an aggregate increase of $21,250,000); provided howeveras defined below) becomes effective, that: the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00 (a) Borrowers and the Borrower shall not be permitted to make more deliver a certificate, no later than two requests for increases during Business Days (or such shorter period as agreed between the Term, Borrower and each increase 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 the sum of all unutilized Incremental Commitments and Incremental Loans does not exceed $10,625,000; 750 million, (bii) upon the effectiveness of any Incremental Commitment Amendment (as defined below), no Default or Event of Default shall have occurred and be continuing and (iii) the 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 would occur at the time ofrespective period, as the case may be). Any loans made in respect of any such Incremental Commitment shall be made by creating a new Tranche.
(b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or after giving effect toany portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, in the case of any Incremental Revolving Commitments (if such request; and 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 shall pay a closing fee 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 an amount equal to one half of one percent (0.50%) the opinion of the amount Borrower and the Administrative Agent, to effect the provisions of the increasethis subsection 2.5, which fee shall be earned on the date the increase is effectiveprovided, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: however, that (i) the loans made under (A) the Incremental Revolving Facility shall constitute Obligations Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured and guaranteed with the other Obligations 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 Revolving Facility shall be obtained from Lenders existing on Commitment unless it so agrees; (iii) the Closing Date and such Lender’s Commitment Percentage maturity date of such Incremental Revolving Facility will Commitments shall be as set forth on no earlier than the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, Term Loan Maturity Date; (iv) the conditions in Section 8.2 weighted average life to maturity of all Incremental Term Loans of any Tranche shall have been satisfied, be no shorter than the weighted average life to maturity of the Term Loans; (v) Administrative Agent interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall have received evidence be determined by the Borrower and the 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 Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all requisite corporate action and proceedings 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 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 of the Lead Arrangers (or 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 Revolving Facility shall have been taken which evidence Term Loans (and any fee payable to any Additional Lender in lieu of any portion of any such fee payable to any such arranger or 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 the Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term Loans shall be required, to the extent an increase in form and substance satisfactory to Administrative Agentthe 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) Administrative Agent shall have received from Borrowers and such Incremental Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf required vote or action of the LendersRequired 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 documentation in respect thereof, any amendment to the extent not consistent with this Agreement or any other document as may in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be necessary reasonably satisfactory to incorporate the terms of any new Incremental Revolving Facility herein thereinBorrower.
Appears in 1 contract
Incremental Facility. Subject (a) The Borrower may, on or after the Closing Date, by notice to the terms and conditions set forth herein, Borrowers Administrative Agent (whereupon the Administrative Agent shall have the right, at any time prior promptly deliver a copy to the end each of the TermLenders), to request, upon ten request one tranche of new Indebtedness (10either in the form of second lien subordinated term loans or second lien secured subordinated notes) Business Days prior written notice, an increase to in a separate facility from the Maximum Revolving Advance Amount outstanding Term Loans (the “Incremental Revolving Facility”), provided that (i) up both at the time of any such request and after giving effect to $50,000,000 (an aggregate increase the effectiveness and funding of $21,250,000); provided howeverthe Incremental Facility, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur exist and at the time of, that any such Incremental Facility is made or effected (and after giving effect tothereto), such request; the conditions in Section 5.15 shall be satisfied and (ii) the Final Order Entry Date shall have occurred.
(b) The aggregate principal amount of all Indebtedness under the Incremental Facility shall not exceed $3,000,000,000 (the “Incremental Limit”).
(c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to Indebtedness under the Incremental Revolving Facility: Facility (i) the loans made under the Incremental Revolving Facility shall constitute Obligations rank junior in right of payment and will be secured and guaranteed of security with the other Obligations on a pari passu basisall 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 Incremental Revolving Facility extensions have actually become effective) and shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretorequire no scheduled amortization, (iii) Borrowers shall execute amended have interest rates, interest margins, rate floors, fees, funding discounts and restated Revolving Credit Notes in favor of premiums determined by the existing Lenders evidencing Borrower and the increase in the Maximum Revolving Advance Amountlenders thereof, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action exceptions and proceedings in connection with “baskets” to the covenants and events of default under the Incremental Revolving Facility shall have been taken which evidence shall will be increased from the corresponding exceptions and “baskets” herein in form and substance a manner reasonably satisfactory to the Administrative Agent, and (viv) may have terms and conditions different from those of the Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above or with respect to immaterial terms, any differences must be reasonably acceptable to the Administrative Agent.
(d) The principal amount of the Incremental Facility (including any principal amount arising in connection with “pay-in-kind” fees or interest) shall not be required to be repaid in cash; and, subject to the proviso to this clause (d), at the final maturity of the Incremental Facility (which shall occur at the exit of the EFIH Debtors from the Cases), the principal amount (including any principal amount arising in connection with “pay-in-kind” fees or interest) of the Indebtedness under the Incremental Facility shall be converted into equity in accordance with an Acceptable Reorganization Plan; provided that nothing herein shall prevent a refinancing and/or repayment of the Incremental Facility at the exit of the EFIH Debtors from the Cases if (x) such refinancing and/or repayment occurs after the Obligations (other than Hedging Obligations under Secured Hedging Agreements and/or Cash Management Obligations under the Secured Cash Management Agreements or Contingent Obligations) have been repaid in full in cash and (y) the Acceptable Reorganization Plan permits the Borrower to make such repayment and/or incur Indebtedness to refinance the Incremental Facility.
(e) The proceeds of the Incremental Facility shall be used solely to repay in full the Prepetition Second Lien Obligations, and all interest, premium, fees, and expenses incurred in connection with such repayment and the incurrence of the Incremental Facility.
(f) The notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the Incremental Facility. The 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 satisfaction on the date thereof of the conditions in Section 5.15 and such other conditions 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 have received from Borrowers and any Guarantor such provide that until the Obligations (other documentation as it deems reasonably necessary. 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 is authorized will control at all times all remedies and other actions related to enter intothe Collateral, on behalf of and that the Lenders, secured parties under the Incremental Facility will not be entitled to take any amendment action with respect to this Agreement or any the Collateral (other document as may be necessary than limited actions to incorporate preserve and protect the terms of any new liens securing the Incremental Revolving Facility herein thereinthat do not impair the liens securing the Obligations).
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) The Borrower may at any time prior or from time to time during the Incremental Facility Availability Period, by notice to the end Facility Agent (whereupon the Facility Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount request that one or more additional tranches of Capital Expenditure Loans (the “Incremental Revolving FacilityLoans”) up be made available to $50,000,000 the Borrower. At the time of (an aggregate increase i) any such request and upon the effectiveness of $21,250,000); provided however, that: any Incremental Amendment referred to below (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (bx) no Default or Event of Default shall have occurred exist or would occur at the time of, or exist after giving effect tothereto, (y) a Lock-Up Event shall not have occurred and be continuing and (z) Group FFO Leverage Ratio shall not be less than 8.50% and (ii) the initial request for a Borrowing of Incremental Loans, all Capital Expenditure Commitments (which, for avoidance of doubt, shall not refer to commitments for Incremental Loans) shall have been fully borrowed.
(b) Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided, that such request; and amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans shall not exceed the sum of $750,000,000.
(c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: Loans (i) the loans made under the Incremental Revolving Facility shall constitute Obligations rank pari passu in right of payment and will be secured and guaranteed of security with the other Obligations on a pari passu basisLoans, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on not mature earlier than one year after the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoFinal Maturity Date, (iii) Borrowers shall execute amended not be materially more restrictive, taken as a whole, to the Borrower (including with respect to mandatory and restated Revolving Credit Notes in favor voluntary prepayments) than the terms of this Agreement; provided that a certificate of an Authorized Officer of the existing Lenders evidencing Borrower is delivered to the increase 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 Maximum Revolving Advance Amountforegoing 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) the conditions in Section 8.2 shall have been satisfied, a weighted average life not shorter than that of the remaining average life of the Capital Expenditure Loans and (v) Administrative Agent shall have received evidence that all requisite corporate action otherwise be on terms and proceedings in connection conditions to the extent not consistent with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance Facilities, reasonably satisfactory to Administrative Agentthe 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 (viand each existing Lender will have the right, but not an obligation, to make a portion of any Incremental Loan on terms permitted in this Section 2.11) Administrative Agent shall have received from Borrowers and or by any Guarantor other bank or other financial institution (any such other documentation as it deems reasonably necessarybank or other financial institution being called an “Additional Lender”); provided that in no event or at any time shall any Borrower Affiliate or Macquarie Affiliate be a Lender for any Incremental Loans (including by means of assignment or participation pursuant to Section 10.07). Administrative Agent is authorized Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to enter into, on behalf of the Lenders, any an amendment (an “Incremental Amendment”) to this Agreement or 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 document 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 incorporate effect the terms provisions of this Section. The effectiveness of (and, in the case of any new Incremental Revolving Amendment, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility herein thereinFinancial 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 Incremental Loans solely for the purpose for which the proceeds of Capital Expenditure Loans may be used. No Lender shall be obligated to provide any Commitment with respect to any Incremental Loans unless it so agrees.
(e) This Section 2.11 shall supersede any provisions in Section 10.01 to the contrary.
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Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) Each Borrower may at any time prior or from time to time after the Closing Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten request one or more tranches of term loans (10each an “Incremental Term Facility”) Business Days prior written noticeor revolving facilities or letter of credit facilities or an increase in the amount of the Revolving Facility (each, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”), provided that (i) up at the time and after the effectiveness of any Incremental Amendment referred to $50,000,000 (an aggregate increase of $21,250,000); provided howeverbelow, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basiscontinuing, (ii) the Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed 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 other than for nominal amortization of 1% or less of the principal amount of such Incremental Facility per year) which is shorter than the then remaining weighted average life of the Revolving Facility, (iii) the 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 apply or relate to any previously existing Facility or other terms reasonably satisfactory to the Administrative Agent, (iv)(A) the Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be obtained from 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 existing on the Closing Date and such Lender’s Commitment Percentage of providing such Incremental Revolving Term Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) any Incremental Facility shall otherwise be on terms and pursuant to documentation to be determined by the Company and the Persons willing to provide such Incremental Facility, provided that to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the 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 or other 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 financial institution or fund being called an “Additional Lender”), provided that the Administrative Agent shall have received evidence that all requisite corporate action and proceedings consented (not to be unreasonably withheld) 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 connection with the respect of Incremental Revolving Facility Facilities shall have been taken which evidence shall be in form and substance satisfactory become Commitments under this Agreement pursuant to Administrative Agent, and an amendment (vian “Incremental Amendment”) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or and, as appropriate, the other Loan Documents, executed by the applicable Borrower(s), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 10.1(e) hereof. The Incremental Amendment may, without the consent of any other document 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 incorporate effect the terms provisions of this Section 2.19. The effectiveness of any new Incremental Revolving Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility herein thereinClosing 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 Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. Subject (a) The Company may from time to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end third anniversary of the Term, Closing Date amend this Agreement in order to request, upon ten provide to the Company additional revolving loan facilities (10) Business Days prior written noticeeach, an increase to "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), provided that (i) the Maximum Revolving Advance Amount (aggregate principal amount of the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase Facilities shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; 400,000,000 and (cii) Borrower each Incremental Facility shall pay be in a closing fee in an amount equal to one half of one percent (0.50%) of the minimum aggregate principal amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid$50,000,000. The following terms and conditions shall apply to the Each Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations 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 prepayments 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, after giving effect thereto and the use of proceeds thereof, no Default or Event of Default exists and the Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a 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 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 the applicable Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoEffective Date, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amountapplicable Incremental Facility Maturity Date, (iv) the conditions in Section 8.2 shall have been satisfiedamortization schedule or revolving credit period, as applicable, applicable to such Incremental Facility, (v) Administrative Agent shall have received evidence that all requisite corporate action whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and proceedings are entitled to share in connection with the Incremental Revolving Facility shall have been taken which evidence shall be mandatory prepayments as specified in form and substance satisfactory to Administrative Agent, subsection 8.6 and (vi) Administrative Agent 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 have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessarybe otherwise duly completed. Administrative Agent Each Incremental Lender that is authorized a signatory to enter intoan Incremental Facility Activation Notice severally agrees, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms and conditions 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 new Lender not party to such Incremental Revolving Facility herein thereinActivation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
Appears in 1 contract
Incremental Facility. Subject (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, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, as an increase to the Maximum Revolving Advance Amount (the “Energy Hedging Incremental Revolving FacilityLoan”) up to $50,000,000 (an aggregate increase of $21,250,000); provided howeverthat, that: (ai) Borrowers shall not be permitted to make more than two requests for increases during at the Termtime of any such request and upon the effectiveness of any such Energy Hedging Incremental Loan, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred exist or would occur at the time of, or exist after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basisthereto, (ii) such Incremental Revolving Facility shall increase must be obtained from Lenders existing on the Closing Date in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoamount, (iii) Borrowers 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 amended and restated Revolving Credit deliver a Note or Notes in favor of as are necessary and requested by the existing applicable Lenders evidencing to reflect the increase in the Maximum Revolving Advance AmountEnergy Hedging Commitment, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent Schedule 2.01 shall have received from Borrowers 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 Guarantor 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 documentation as it deems reasonably necessary. Administrative 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 is authorized (such approval not to enter intobe 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, on behalf 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 Lenders, any amendment to this Agreement or any other document as Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be necessary used.
(d) Except as otherwise set forth in this Section 2.11, all Energy Hedging Incremental Loans shall be subject to incorporate the terms of and conditions set forth herein including any new Incremental Revolving Facility herein thereinApplicable Margin.
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Incremental Facility. Subject The Borrower may at any time, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request 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 "Incremental Loans") pursuant to an additional term loan credit facility (the "Incremental Facility"), provided that both at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (A) no Default shall exist, (B) the Borrower and its Subsidiaries are in compliance, on a pro forma basis after giving effect to 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 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 set forth herein, Borrowers shall have applicable to Incremental Loans maturing after the right, at any time prior to Tranche C Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, Tranche C Maturity Date and each increase shall not exceed $10,625,000; (b) no Default or Event 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 Default Incremental Loans, which shall have occurred or would occur at be in a minimum principal amount of not less than $25,000,000. In the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee event that existing Lenders provide commitments in an aggregate amount less than the total amount of the Incremental Loans requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide Incremental Loans in an aggregate amount equal to one half the unsubscribed amount. Commitments in respect of one percent Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (0.50%an "Incremental Facility Amendment") of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Facility Amendment may, without the consent of any other document Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to incorporate effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof (the "Incremental Facility Closing Date") of each of the conditions set forth 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 Incremental 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 of any new Incremental Revolving Facility herein thereinhereof.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers the Borrower shall have the right, at any time prior and from time to the end of the Termtime, to request, upon ten incur additional Indebtedness under this Credit Agreement in the form of one or more additional term loan facilities (10) Business Days prior written notice, each an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) by an aggregate amount of up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid100,000,000. The following terms and conditions shall apply to the each Incremental Revolving Facility: (ia) the loans made under the any such Incremental Revolving Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Obligations Loans on a pari passu basis, (iib) 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 Revolving 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 existing on or from other banks, financial institutions or investment funds, in each case in accordance with the Closing Date and such Lender’s Commitment Percentage of terms set forth below, (f) any such Incremental Revolving Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof, (g) the proceeds of any Additional Loan will be as set forth on the signature page heretoused to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (ivh) the conditions to Extensions of Credit in Section 8.2 4.2 shall have been satisfied, satisfied and (vi) the Administrative Agent shall have received evidence that all requisite corporate action from the Borrower updated financial projections and proceedings an officer’s certificate, in connection with the Incremental Revolving Facility shall have been taken which evidence shall be each case in form and substance satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility, the Borrower will be in compliance with the financial covenants set forth in Section 5.9. Participation in any such 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 the amount of the 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 (vi) investment funds reasonably acceptable to the Administrative Agent shall have received from Borrowers and any Guarantor to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders, provided that such other documentation banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as it deems the Administrative Agent and the Borrower may reasonably necessaryrequest. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other document Credit Document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at At any time prior to the end Tranche B Maturity Date, the Borrower may, by notice to the Administrative Agent (which shall promptly deliver a copy to each of the TermLenders), to requestrequest the addition of a new tranche of Term Loans (all such Loans, upon ten (10) Business Days prior written noticecollectively, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving FacilityLoans”) up provided, however, that the addition of a tranche of Incremental Loans under this Agreement and the other Loan Documents shall be subject to $50,000,000 the conditions that, both at the time of any such request and upon effectiveness of the Incremental Facility Amendment referred to below, (i) no Default shall exist, (ii) the Borrower shall be in 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 increase principal amount of at least $100,000,000 and not in excess of $21,250,000600,000,000, (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 Tranche B Maturity Date and shall have a longer average weighted life than the combined weighted average life of the Revolving Loans (assuming the Revolving Commitments were fully drawn) and the Term Loans, and (iv) shall otherwise be treated no more favorably than the Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided however, that: that the terms and conditions applicable to the Incremental Loans may 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 (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase which amount shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) 600,000,000). The Borrower shall pay arrange for one or more vendors of telecommunications equipment or banks or other financial institutions (any such ban k, other financial institution or vendor that is not already a closing fee Lender, being called an “Additional Lender”) to extend commitments to provide Incremental Loans in an aggregate amount equal to one half the requested amount of one percent (0.50%) Incremental Loans, provided that each Additional Lender that is not a vendor of telecommunication equipment or an existing Lender shall be subject to the approval of the amount Administrative Agent (which approval shall not be unreasonably withheld). The proceeds of the increaseIncremental Loans will be used to finance the purchase, which fee acquisition or construction of Telecommunications Assets, including real estate, to be owned and utilized by the Borrower and the Restricted Subsidiaries. Commitments in respect of Incremental Loans shall be earned on become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”)to this Agreement and, as appropriate, the date other Loan Documents, executed by the increase is effectiveBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and shall be non-refundable when paidthe Agent. The following terms and conditions shall apply to Incremental Facility Amendment may, without the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the consent of any other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment effect such amendments to this Agreement or any and the other document Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to incorporate effect the terms provisions of this Section. The effectiveness of any new Incremental Revolving Facility herein thereinAmendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02. No Lender shall be obligated to provide any Incremental Loans unless it so agrees.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers The Borrower and any one or more other Persons that are Lenders or will become New Lenders may from time to time agree that such Lenders or New Lenders shall not extend term commitments and make term loans thereunder by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the aggregate principal amount of the Incremental Term Loans to be permitted to make more than two requests made thereunder, (ii) the applicable Incremental Facility Closing Date and (iii) (x) the applicable Incremental Maturity Date, (y) the amortization schedule for increases during such Incremental Loans and (z) the Term, and each increase shall not exceed $10,625,000Applicable Margin for such Incremental Loans; provided that (bA) no Default or Event of Default shall exist immediately before or after giving effect to 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 occurred been (or would occur at shall have been required to be) delivered pursuant to Section 5.06, (C) each of the time ofrepresentations 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, or such representation shall be true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such request; 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 (cG) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee any Incremental Facility shall be earned on terms and conditions to be determined by the date Borrower and the increase is effectiveapplicable Incremental Lenders, provided that, to the extent such terms and shall be non-refundable when paid. The following conditions are not consistent with the Tranche B Term Loan Facility (except to the extent permitted above), such terms and conditions shall apply be reasonably satisfactory to the Administrative Agent (it being understood and agreed, however, that the terms and conditions applicable to any Incremental Revolving Facility: 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 loans made under consent of the Majority Lenders, the aggregate principal amount of Incremental Revolving Facility Loans shall constitute Obligations not exceed $50,000,000 and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be obtained from Lenders existing on in a minimum amount of at least $10,000,000 and (y) no more than three Incremental Facility Closing Dates may be selected by the Borrower after the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 Date. No Lender shall have been satisfied, any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(vb) Administrative Agent shall have received evidence that all requisite corporate action and proceedings Any New Lender which elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.16(a) shall execute a New Lender Supplement, whereupon such bank, financial institution or other entity shall become a Lender for all purposes and to the same extent 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 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 Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Loans evidenced thereby. The Administrative Agent shall have received from Borrowers and the Borrower may, without the consent of any Guarantor such Lender other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of than the applicable Incremental Lenders, any amendment effect such amendments to this Agreement or any and the other document Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to incorporate give effect to the terms provisions of any Incremental Facility Activation Notice and of this Section 2.16, including any amendments necessary to treat the applicable Loans and/or Commitments of the Incremental Lenders as the same or a new Incremental Revolving Facility herein therein“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 2.16.
Appears in 1 contract
Incremental Facility. Subject to (a) On or before the terms and conditions set forth hereinMaturity Date, Borrowers shall the Borrower will have the right, at any time prior but not the obligation, to increase the end committed amount of the TermRevolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, to requestin each case, upon ten by incurring incremental revolving credit commitments (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (ai) Borrowers all representations and warranties hereunder shall not be permitted true and correct in all material respects after giving effect to make more than two requests the Incremental Facility (except in the case of any such representation and 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 respective date or for increases during the Termrespective period, as the case may be) and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or and be continuing after giving effect tothereto; (ii) the Borrower shall be in compliance with all covenants, such requestincluding, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; and (ciii) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) all other terms of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders substantially identical with the terms of the existing on Revolving Credit Facility except as reasonably approved by the Closing Date and such Lender’s Commitment Percentage of such Administrative Agent.
(b) Any Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the provided by existing Lenders evidencing the increase or other Persons who become Lenders in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have been satisfied, the exclusive right to act as arranger and bookrunner (vincluding any similar role) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence and shall be exclusively entitled to any underwriting, arrangement or similar fees in form and substance satisfactory to Administrative Agentconnection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter intoif there are Letters of Credit then outstanding, on behalf the participations of the Lenders, any amendment Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to this Agreement or any other document as may be necessary reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to incorporate the terms of any new applicable Incremental Revolving Facility herein thereinFacility.
Appears in 1 contract
Incremental Facility. Subject to After the terms and conditions set forth hereinEffective Date, Borrowers shall the Borrower will have the right, at any time prior to without the end consent of the TermLenders, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount establish a revolving credit facility under this Agreement (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: that (a) Borrowers shall not be permitted after giving effect to make more than two requests for increases during the TermIncremental Facility, and each increase 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 $10,625,000; 150,000,000, (b) 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 or Event of Default shall have occurred or would occur be continuing at either the time ofof the request or the effective date of such increase, or (c) any such increase must be in a minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof, and (d) after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving 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 loans made under Facility (unless otherwise reasonably satisfactory to the Incremental Revolving Facility shall constitute Obligations and will Lenders), (ii) provide for any revolving lenders thereunder to be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from basis with the Lenders existing on under the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoFacility, (iii) Borrowers shall execute amended appoint the Administrative Agent as agent for the revolving lenders (whether or not the Administrative Agent, as Lender, is participating thereunder), and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) will rank pari passu in right of payment and with respect to security with the conditions in Section 8.2 Facility and the borrower and guarantors of the Incremental Facility shall have been satisfiedbe the same as the Borrower and Guarantors with respect to the Facility. In connection with any Incremental Facility, (v) the Borrower, the Administrative Agent and each applicable Lender shall have received evidence that all requisite corporate action execute and proceedings in connection with deliver to the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers an Incremental Amendment and any Guarantor such other documentation as it deems reasonably necessary. the Administrative Agent is authorized shall reasonably specify to enter intoevidence the Incremental Facility. Any Incremental Amendment may, on behalf 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 reasonable opinion of the LendersAdministrative Agent and the Borrower, to implement the terms of the Incremental Facility on terms consistent with this Section (including amendments to permit accrued interest and fees to share ratably in the benefits of this Agreement and the other Loan Documents and to include appropriately the Lenders holding such Incremental Facility in any amendment determination of the 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 avoidance of doubt, payment of any interest, fees or premium in respect of any Incremental Facility on such terms as may be set forth in the relevant Incremental Amendment) and hereby waive the requirements of any provision of this Agreement or any other document as Loan Document that may be necessary to incorporate the terms of otherwise prohibit any new such Incremental Revolving Facility herein thereinor any other transaction contemplated by this Section.
Appears in 1 contract
Sources: Credit Agreement (Formfactor Inc)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, The Borrower may at any time prior or from time to time after the Closing Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to requestrequest one or more additional tranches of term loans, upon ten revolving facilities or letter of credit facilities (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”), provided that (i) up at the time and after the effectiveness of any Incremental Amendment referred to $50,000,000 (an aggregate increase of $21,250,000); provided howeverbelow, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent not available to issue letters of credit) had been fully used on the last day of such period and (iii) the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Borrower for which financial statements are available, determined as if any term loans under such Incremental Facility had been outstanding on the last day of such period, shall be less than 2.5 to 1.0. 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) and there shall be not more than 3 requests for Incremental Facilities. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities (including the Incremental Revolving Facility) shall not exceed $200,000,000. Any Incremental Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Maturity Date or would occur at have a weighted average life (if applicable) which is shorter than the time ofthen remaining average life of the Loans, or after giving effect to, such request; and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower shall pay a closing fee in an amount equal and the Persons willing to one half of one percent provide such Incremental Facility, provided that (0.50%A) of to the amount of extent such terms and documentation are not consistent with the increaseFacilities (other than with respect to pricing, which fee amortization and maturity) they shall be earned on reasonably satisfactory to the date Administrative Agent and (B) if the increase is effective, and Applicable Margin (which term for purposes of this Section 2.20 shall include any original issue discount (“OID”) or upfront fees (which shall be non-refundable when paid. The following terms 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 conditions for any Incremental Facility consisting of a revolving loan facility shall apply to be the Incremental Revolving Facility: (i) the loans made under or the Incremental Revolving Facility, as applicable, in the primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any Incremental Facility shall constitute Obligations and will be secured and guaranteed with exceeds the other Obligations on a pari passu basisApplicable Margin relating to the applicable Facility immediately prior to the effectiveness of the applicable Incremental Amendment, (ii) the Applicable Margin relating to such Incremental Revolving Facility shall be obtained from Lenders existing on adjusted to equal the Closing Date and such Lender’s Commitment Percentage of Applicable Margin relating to such Incremental Revolving Facility will be as Facility. Each notice from the Borrower pursuant to this Section 2.20 shall set forth on the signature page hereto, (iii) Borrowers shall execute amended requested amount and restated Revolving Credit Notes in favor proposed terms of the relevant Incremental Facility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lenders evidencing Lender or by any Eligible Assignee selected by the increase in Borrower (any such other financial institution or fund being called an “Additional Lender”), provided that the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings consented (not to be unreasonably withheld) 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 connection with the respect of Incremental Revolving Facility Facilities shall have been taken which evidence shall be in form and substance satisfactory become Commitments under this Agreement pursuant to Administrative Agent, and an amendment (vian “Incremental Amendment”) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 10.1(e) hereof. The Incremental Amendment may, without the consent of any other document 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 incorporate effect the terms provisions of this Section 2.20. The effectiveness of any new Incremental Revolving Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility herein thereinClosing 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 will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that 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.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers the Borrower shall have the right, at any time prior from time to time during the Commitment Period and after the First 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 end of the Term, to request, upon ten Revolving Committed Amount (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid125,000,000. The following terms and conditions shall apply to the each Incremental Revolving Facility: (ia) the loans made under the any such Incremental Revolving Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (iib) 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 Revolving Term Loan, (c) each Incremental Facility shall be obtained from Lenders existing on in a minimum principal amount of $25,000,000 and integral multiples of $2,500,000 in excess thereof, (d) the Closing Date and proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such Lender’s Commitment Percentage of promissory notes as are necessary to reflect the Additional Loans under any such Incremental Revolving Facility will be as set forth on the signature page heretoFacility, (iiif) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amountbefore any Additional Loans are made, (iv) the conditions to Extensions of Credit in Section 8.2 4.2 shall have been satisfied, (vg) Administrative Agent no Default or Event of Default shall have received evidence that all requisite corporate action and proceedings in connection with then exist or would exist after giving effect to any such Incremental Facility, (h) the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers the Borrower a satisfactory legal opinion of counsel to the Borrower and any Guarantor such other documentation as it deems reasonably necessarynecessary to effectuate each such Incremental Facility and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to the Administrative Agent, demonstrating that, (A) after giving effect to any such Incremental Facility on a pro forma basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 and (B) 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 covenants under the Subordinated Note Documents and the documents for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). Each Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds reasonably acceptable to the Administrative Agent and the Borrower; provided that such other banks, financial institutions and investment funds shall enter into such joinder or other agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other document Credit Document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein.
Appears in 1 contract
Sources: Credit Agreement (Belden CDT Inc.)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers The Borrower and any one or more Banks (including any New Bank (as defined below)) may from time to time before the Maturity Date agree that such Banks shall not be permitted to make more than two requests for increases during the Termmake, and each obtain or increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, their Incremental Term Loans by executing and shall be non-refundable when paid. The following terms and conditions shall apply delivering to the Incremental Revolving Facility: Administrative Agent an Increased Facility Activation Notice specifying (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basisamount of such increase, (ii) the applicable Increased Facility Closing Date, (iii) the applicable maturity date and the amortization schedule for such Incremental Revolving Facility Term Loans, in each case, which shall 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 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 maturity), the Applicable Margin for the existing Loans shall be obtained from Lenders increased so that the total yield in respect of such Incremental Term Loans is not greater than 50 basis points higher than the total yield for the existing Loans. Notwithstanding the foregoing, (i) the Administrative Agent shall have received (A) additional new assets as Collateral and Covered Assets, consisting of assets that are of the type included in the Collateral and Covered Assets, and in the manner and pursuant to such documentation provided, on the Closing Date and otherwise reasonably acceptable to the Administrative Agent and the increasing Bank or New Bank, as applicable, such Lender’s Commitment Percentage of such Incremental Revolving Facility will be that the Collateral Coverage Ratio as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing Increased Facility Closing Date, after giving pro forma effect to such addition, shall be equal to or greater than the increase in Collateral Coverage Ratio as of the Maximum Revolving Advance Amountlast Collateral Report, (iv) the conditions in Section 8.2 which shall have been satisfiedin 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 (vii) without the consent of the Administrative Agent Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000. No Bank shall have received evidence that all requisite corporate action any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and proceedings 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 Revolving Facility shall have been taken which evidence shall Term Loans evidenced thereby. Any such deemed amendment may be effected in form and substance satisfactory to Administrative Agent, and (vi) writing by the Administrative Agent shall have received from Borrowers with the Borrower’s consent (not to be unreasonably withheld) and any Guarantor such furnished to the other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein thereinparties hereto.
Appears in 1 contract
Sources: Credit Agreement (Istar Inc.)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) The Borrower may at any time prior or from time to time after the Closing Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten request one or more tranches of term loans (10each an “Incremental Term Facility”) Business Days prior written noticeor an increase in the amount of the Revolving Facility (each, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (; together with the Incremental Term Facilities, each an aggregate increase of $21,250,000“Incremental Facility”); provided howeverthat (i) at the time of such request, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basiscontinuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed 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 $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 greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental same as those applicable to the Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance AmountFacility, (iv) the conditions in Section 8.2 Applicable Margin relating to any Incremental Term Facility shall have been satisfied, be determined by the Borrower and the Lenders providing such Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such Incremental Term Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility and the Lenders or other 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 financial institution or fund being called an “Additional Lender”); provided that the Administrative Agent, the Swingline Lender, and the Issuing Bank shall have received evidence consented (not to be unreasonably withheld) 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 Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 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 (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all requisite corporate action 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 proceedings such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to 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 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 shall have been taken which evidence Closing Date, each Lender and each Additional Lender, if any, shall be in form deemed to have irrevocably sold, transferred, conveyed and substance satisfactory assigned to Administrative Agenteach other Lender and each other Additional Lender, if any (and (vi) Administrative Agent without, for the avoidance of doubt, increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf hold a Pro Rata Share of each of the Lenders, any amendment Revolving Commitments and Revolving Loans equal to this Agreement such Lender’s or any other document as may be necessary to incorporate such Additional Lender’s Pro Rata Share of the terms of any new Incremental Aggregate Revolving Facility herein thereinCommitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers Borrower shall have the right, at any time prior and from time to the end of the Termtime, to request, upon ten incur additional Indebtedness under this Agreement in the form of one or more (10but not to exceed five) Business Days prior written notice, additional term loan facilities (each an increase to the Maximum Revolving Advance Amount (the “"Incremental Revolving Facility”") by an aggregate amount of up to $50,000,000 (an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid50,000,000. The following terms and conditions shall apply to the each Incremental Revolving Facility: (ia) the loans made under the any such Incremental Revolving Facility (each an "Additional Loan") shall constitute Obligations and will be secured and guaranteed with the other Obligations 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 in the Applicable Percentage for such existing Term Loans (including any existing Additional Loans), (c) the interest rate margin, weighted average life to maturity and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available, but in any event (i) such final maturity will not be shorter than the Term Loan Maturity Date and will not extend beyond June 16, 2011 and (ii) such 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 Revolving 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 existing on or from other banks, financial institutions or investment funds, in each case in accordance with the Closing Date and such Lender’s Commitment Percentage of terms set forth below, (f) any such Incremental Revolving Facility shall be in a minimum principal amount of $7,500,000 and integral multiples of $1,000,000 in excess thereof, (g) the proceeds of any Additional Loan will be as set forth on the signature page heretoused to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (ivh) the conditions to Extensions of Credit in Section 8.2 4.2 shall have been satisfied, satisfied and (vi) Administrative Agent shall have received evidence that all requisite corporate action from Borrower updated financial projections and proceedings an Officers' Certificate, in connection with the Incremental Revolving Facility shall have been taken which evidence shall be each case in form and substance satisfactory to Administrative Agent, and demonstrating that, after giving effect to any such Incremental Facility, Borrower will be in compliance with the financial covenants set forth in Section 7.6. Participation in any such 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 (vi15) 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 have received from Borrowers 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 any Guarantor 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 documentation banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as it deems Administrative Agent and Borrower may reasonably necessaryrequest. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other document Loan Document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein.
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, at At any time prior to the end second anniversary of the Termdate hereof, the Borrowers may, by written notice ("INCREMENTAL FACILITY NOTICE") to requestthe Administrative Agent (which shall promptly deliver a copy to each of the Lender Parties), upon ten request the addition of one or more additional term facilities (10each 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) Business Days prior written noticeshall 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, and to the extent that such Lenders do not commit within 15 days of the Incremental Facility Notice for any such Incremental Facility, the 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, an increase "ADDITIONAL LENDER") to extend commitments to provide the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (Facility in an aggregate increase of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half the amount, if any, by which the commitments by the Lenders to provide such Incremental Facility is less than the amount thereof requested by the Borrowers pursuant to the terms of one percent (0.50%) this Section 2.05(c). Commitments in respect of an Incremental Facility shall become "Commitments" under this Agreement pursuant to an amendment hereto executed by each of the amount 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 increase, which fee commitments in respect of each Incremental Facility shall be earned subject to the satisfaction on the date thereof and, if different, on the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made date on which Advances under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with are made, of each of the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as conditions set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein therein3.02.
Appears in 1 contract
Sources: Credit Agreement (Broadwing Inc)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers A. Borrower shall have the right, at any from time prior to time on or before the end of the TermIncremental Term Loan Commitment Termination Date, to requestrequest additional term loans (each an “Incremental Term Loan,” and, upon ten (10collectively the “Incremental Term Loans,” and “Term Loans” shall thereafter be deemed to include all Incremental Term Loans) Business Days prior written notice, pursuant to an increase to the Maximum Revolving Advance Amount incremental facility (the “Incremental Revolving Facility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided howeverprovided, that: that at the time any Incremental Term Loan is made pursuant to the Incremental Facility, (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Event of Default or Potential Event of Default shall have occurred and be continuing or would occur at result from the time ofmaking of such Incremental Term Loan; (b) Borrower shall have delivered to Administrative Agent (1) a Compliance Certificate certifying, or among other things, that Borrower is, as of the date of such Incremental Term Loan and after giving effect toto both such Incremental Term Loan and the Permitted Acquisition, if any, for which the proceeds of such request; and (c) Borrower shall pay a closing fee Incremental Term Loan will be used, in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following compliance with all terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations contained in this Agreement and will be secured and guaranteed with the other Obligations on a pari passu basisLoan Documents, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on including the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as financial covenants set forth on the signature page heretoin this Agreement, (iii) Borrowers shall execute amended and restated Revolving Credit Notes accompanied by a written calculation, in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance detail satisfactory to Administrative Agent, of such financial covenant compliance and (vi2) 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) mature and amortize in a 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 mature on a date no earlier than June 30, 2011; provided, that the applicable interest rates may differ from the then existing Term Loans; and (e) the 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 have received from Borrowers be permitted to 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 and any Guarantor timing of fees, if any, payable with respect to such other documentation as it deems reasonably necessary. Administrative Agent is authorized Incremental Term Loan and the amortization schedule relating to enter into, on behalf of the Lenders, any amendment 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 any restrictive on Borrower or beneficial to the Incremental Term Loan lenders (other document than with respect to pricing) than the Term Loans are to existing Lenders and Borrower, as applicable. Each Credit Party shall execute and deliver to Administrative Agent such assumptions, guarantees, security documents, opinions and other documents as may be necessary reasonably required by Administrative Agent and Lenders and obligations shall be evidenced by promissory notes substantially in the form of Exhibit X (each, an “Incremental Term Loan Note” and, collectively, the “Incremental Term Loan Notes”), and Borrower shall execute and deliver an Incremental Term Loan Note to incorporate each Incremental Term Loan lender in the terms principal amount of any new such lender’s Pro Rata Share of the Incremental Revolving Facility herein thereinTerm Loan being made. Each Incremental Term Loan Note shall represent the obligation of Borrower to pay the amount of the applicable Incremental Term Loan advanced by such lender, together with interest thereon as prescribed in the applicable Supplement.
Appears in 1 contract
Incremental Facility. Subject to (i) With the terms and conditions set forth hereinprior written agreement of the Administrative Agent entered into after the Restatement Effective Date, Borrowers shall have the right, Borrower may at any time prior before October 1, 2011, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten (10) Business Days prior written notice, request an increase to the Maximum Revolving Advance Amount additional tranche of term loans under this Agreement (the “Incremental Revolving FacilityTerm Loans”) up to $50,000,000 (an aggregate increase of $21,250,000); provided howeverthat both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, that: no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made or effected (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (bafter giving effect thereto) no Default or Event of Default shall have occurred or would occur at the time ofexist; provided, or further that on a Pro Forma Basis after giving effect toto the incurrence of such Incremental Term Loan (and after giving effect to any acquisition consummated simultaneously therewith), such request; the Borrower would be in compliance with the requirements of Article V computed as of the last day of the most recently ended Fiscal Quarter for which financial statements are available pursuant to Section 6.1(b).
(ii) Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $5,000,000 and the aggregate amount of the 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 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 (cD) 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 the Incremental Term Loans; provided, however that the interest rate applicable to the Incremental Term Loans shall pay 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 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 (y) shall otherwise be on the 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 closing fee period of 15 days following receipt of such notice, to 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 equal not exceeding its Pro Rata Share. No Lender (or any successor thereto) shall have any obligation to one half of one percent 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 (0.50%iv) of this Section 2.1(c), the amount Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the increaseexisting 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 is not a party to this Agreement (an “Additional Lender”), such Additional Lender shall become a party to this Agreement; provided, however, that any Additional Lender must be acceptable to the Administrative Agent, which fee acceptance will not be unreasonably withheld or delayed if such consent would be required under Section 11.2 for an assignment of Loans to such Lender or Additional Lender.
(v) Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, subject to Section 2.1(c)(iv), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be earned subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the increase is effective, and conditions set forth in Section 3.2 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 3.2 shall be non-refundable when paid. The following terms and conditions shall apply deemed to refer to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage effective date of such Incremental Revolving Facility will be Amendment) and such other conditions as set forth on the signature page hereto, (iii) Borrowers parties thereto shall execute amended and restated Revolving Credit Notes in favor agree. The Borrower may use the proceeds of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving Facility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, and Term Loans for any purpose not prohibited by this Agreement.
(vi) Administrative Agent This Section 2.1(c) shall have received from Borrowers and supersede any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized provisions in Section 11.1 to enter into, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms of any new Incremental Revolving Facility herein thereincontrary.
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Incremental Facility. Subject (a) The Borrower may from time to time amend this Agreement in order to provide to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Term, to request, upon ten Revolving Facility or any other existing revolving facility hereunder (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate increase principal amount of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase Incremental Facilities shall not exceed $10,625,000; 200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.25:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Default or Event of Default shall have occurred or would occur and be continuing; 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 clause (iv) shall be tested solely at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount execution of the increase, which fee 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 earned on Obligations under this Agreement and the date other Loan Documents that are secured by the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured Collateral and guaranteed with the other Obligations on a pari passu basis, 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 (iiprovided that any Incremental Term Facility may amortize in an amount such that it is fungible with the Term Loan Facility) such and a final maturity no earlier than the Final Maturity Date. Incremental Revolving Facility shall Facilities will be obtained from Lenders existing entitled to prepayments and voting rights on the Closing Date and such Lender’s Commitment Percentage of such same basis as the comparable Facility unless the applicable Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings in connection with the Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have been taken which evidence 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 in form and substance on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (viii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (including revolving commitments in respect of any Incremental Revolving Facility, Extended Revolving Commitments and any original Revolving Commitments) that have more than four different maturity dates.
(b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall have received from Borrowers and be reasonably satisfactory to the Borrower (any Guarantor such bank, financial institution, existing Lender or other documentation as it deems reasonably necessary. Administrative Agent is authorized Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to enter into, on behalf the consent (not to be unreasonably withheld or delayed) of the LendersAdministrative Agent, any the Issuing Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement or and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other document Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to incorporate effect the terms provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any new Incremental Revolving Facility herein thereinAmendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) that at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a 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).
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Incremental Facility. Subject (a) The Borrower may by written notice to the terms and conditions set forth herein, Borrowers shall have Agent elect to request the right, at any time prior to the end establishment of the Term, to request, upon ten (10) Business Days prior written notice, an increase to the Maximum Revolving Advance Amount incremental loan commitment (the “Incremental Revolving FacilityLoan Commitment”) in an aggregate principal amount of up to $50,000,000 50,000,000. Such notice shall specify the date (an aggregate increase the “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Agent (or such shorter time as the Agent may agree to in its sole discretion). The Incremental Loan Commitments shall become effective as of $21,250,000the Increased Amount Date to the extent the Lenders or one or more additional Persons, in their sole discretion, have agreed to provide the Incremental Loan Commitments (and such Lenders or additional Persons so providing the Incremental Loan Commitments, together with the Agent and the Borrower, shall enter into in amendment to this Agreement to establish such Incremental Loan Commitments); provided however, that: that (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (bi) no Default or Event of Default shall have occurred or would occur at exist on the time of, date such request is made through and including such Increased Amount Date before or after giving effect to, such requestto the Incremental Loan Commitments; and (cii) Borrower shall pay a closing fee the conditions set forth in an amount equal to one half of one percent (0.50%Section 4.02(b) of the amount of the increase, which fee shall be earned satisfied on the date the increase such request is effective, made and shall be non-refundable when paid. The following terms and conditions shall apply on such Increased Amount Date immediately after giving effect to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, Loan Commitments; (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, no Borrowing Base Deficiency exists or would result therefrom; (iv) the conditions Parent and the Borrower shall be in pro forma compliance with each of the covenants set forth in Section 8.2 shall have been satisfied6.18 as of the last day of the most recently ended calendar month, after giving effect to the Incremental Loan Commitments; (v) Administrative the Incremental Loans shall have a maturity date no earlier than the Maturity Date; (vi) the Incremental Loans shall rank equal in right of payment with the existing Loans, shall be secured by the same property as the Collateral and shall be Guaranteed by the same Persons as the Loans; (vii) the interest rates and, unless otherwise agreed by the Borrower, the Agent and the lenders providing such Incremental Loan Commitment, fees and premiums shall be the same as the existing Loans; (viii) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction; and (ix) the Agent shall have received evidence that all requisite corporate action consented to the establishment of such Incremental Loan Commitment and/or the making of such Incremental Loans, such consent may be withheld in the Agent’s sole and proceedings in connection with absolute discretion.
(b) The terms and provisions of the Incremental Revolving Facility Loans and the Incremental Loan Commitments shall have been taken which evidence shall be be, except as otherwise set forth herein or in form and substance satisfactory the relevant amendment, identical to Administrative Agent, and the existing Loans (vi) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf including in respect of the Lendersmechanics of requesting Loans thereunder and the applicable interest rates and, any amendment unless otherwise agreed by the Borrower, the Agent and the lenders providing such Incremental Loan Commitment, fees and prepayment premiums in respect thereof).
(c) Notwithstanding anything to the contrary contained in this Agreement or any other document as may be necessary Loan Document, this Section 2.15 does not constitute a commitment or agreement of the Agent, the Lenders or any of their affiliates to incorporate provide the terms of any new Incremental Revolving Facility herein thereinLoan Commitments.
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Sources: Credit Agreement (eHealth, Inc.)
Incremental Facility. Subject (a) The Company may from time to time amend this Agreement in order to provide to the terms and conditions set forth herein, Borrowers shall have the right, at any time prior to the end of the Term, to request, upon ten Company additional revolving loan facilities (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Loan Facility”) up to $50,000,000 and additional term loan facilities (each, an “Incremental Term Loan Facility”), provided that (i) the aggregate increase principal amount of $21,250,000); provided however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase Incremental Facilities shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; 400,000,000 and (cii) Borrower each Incremental Facility shall pay be in a closing fee in an amount equal to one half of one percent (0.50%) of the minimum aggregate principal amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid$50,000,000. The following terms and conditions shall apply to the Each Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations 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 prepayments 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, after giving effect thereto and the use of proceeds thereof, no Default or Event of Default exists and the Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a 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 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 the applicable Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page heretoEffective Date, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amountapplicable Incremental Facility Maturity Date, (iv) the conditions in Section 8.2 shall have been satisfiedamortization schedule or revolving credit period, as applicable, applicable to such Incremental Facility, (v) Administrative Agent shall have received evidence that all requisite corporate action whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and proceedings are entitled to share in connection with the Incremental Revolving Facility shall have been taken which evidence shall be mandatory prepayments as specified in form and substance satisfactory to Administrative Agent, subsection 8.6 and (vi) Administrative Agent 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 have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessarybe otherwise duly completed. Administrative Agent Each Incremental Lender that is authorized a signatory to enter intoan Incremental Facility Activation Notice severally agrees, on behalf of the Lenders, any amendment to this Agreement or any other document as may be necessary to incorporate the terms and conditions 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 new Lender not party to such Incremental Revolving Facility herein thereinActivation Notice to execute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. Subject (a) The Borrower may request (but subject, in each case, to the terms and conditions set forth hereinin clause (b) below and the other terms set forth in this Section 2.27) the Lenders establish commitments (“Incremental Commitments”) to make an incremental term loan facility including term loan facilities in the form of commitments to make delayed draw term loans, Borrowers shall have in an aggregate principal amount not to exceed the rightAvailable Incremental Amount (each such facility, at any time an “Incremental Facility”); provided that prior to the end Delayed Draw Termination Date, the Borrower shall have first either (x) drawn the Delayed 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 Term, Agreement.
(b) Each of the following shall be conditions precedent to request, upon ten the effectiveness of any Incremental Facility:
(10i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least fifteen (15) Business Days prior written noticeto 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 consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), to become an Incremental Lender in connection with the 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 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 amendment, an increase “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the Maximum Revolving Advance Amount 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 Revolving Facility”, each of the conditions precedent set forth in Section 5.2(a) up to $50,000,000 and (an aggregate increase of $21,250,000)c) are satisfied; provided howeverthat to the extent agreed to by the Lenders providing any such Incremental Facility, that: the condition set forth in Section 5.2(a) may be satisfied with (ax) Borrowers shall not the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be permitted to make more than two requests for increases during agreed by the Termlenders providing such Incremental Facility; provided further that the condition set forth in Section 5.2(c) may be satisfied, and each increase shall not exceed $10,625,000; (b) if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred or would occur at the time of, or is continuing;
(iv) after giving pro forma effect toto such Incremental Facility and the use of proceeds thereof for such Incremental Facility, such request; (A) the Consolidated First Lien Net Leverage Ratio shall not exceed 4.00 to 1.00 and (cB) Borrower the ARR Total Leverage Ratio shall pay not exceed 0.665:1.00, in each case, calculated on a closing fee in an amount equal to one half of one percent (0.50%) Pro Forma Basis as of the amount end of the increasemost recent Test Period (assuming, which fee shall be earned on in each case, that (x) in the date case of any Incremental Facility being incurred at such time in the increase is effectiveform 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 non-refundable when paid. The following netted from the Consolidated First Lien Net Leverage Ratio);
(v) the terms and conditions with respect to any such Incremental Loan shall be determined by the Borrower and the Lenders thereunder, but shall not be, except to the 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 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 Revolving Facility: Loans or are otherwise reasonably satisfactory to the Administrative Agent);
(ivi) (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 determined by the Borrower and the Lenders thereunder;
(A) any Incremental Facility providing for a separate tranche of Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Loans, and, in any case, (B) no Incremental Loan shall have a final maturity date earlier (but may be later) than the Maturity Date, (C) the loans 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 under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and (D) the Borrower at its election with the consent of the Administrative Agent, and without requiring the consent of any Lender, may effect such Lender’s Commitment Percentage 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 Loans, including by amending the schedule of amortization payments relating to any existing tranche of Loans; provided that any such amendments will not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender immediately prior to the effectiveness of such applicable amendments;
(viii) any Incremental Revolving 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 as set forth 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 signature page heretointerest 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 (iii“All-In Yield”)) Borrowers applicable to any Incremental Facility shall execute amended 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 restated Revolving Credit Notes the All-In Yield applicable to the then existing Loans under the Closing Date Facilities minus 0.50% per annum;
(x) any “most favored nation” pricing provision with respect to the Incremental Loans shall be determined by the Borrower and the Incremental Lenders providing such Incremental Loans; provided that no such “most favored nation” pricing provision shall be more favorable to the applicable Incremental Lenders than that contained in favor clause (ix) of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, this Section 2.27(b);
(ivxi) the conditions in Section 8.2 Borrower shall have been satisfied, (v) Administrative Agent shall have received evidence that paid all requisite corporate action fees and proceedings expenses in connection with the exercise of the applicable Incremental Revolving Facility shall have been taken which evidence Facility;
(xii) all Incremental Loans shall be denominated in form and substance satisfactory to Administrative Agent, and Dollars; and
(vixiii) Administrative Agent each Lender making the Incremental Loans shall have received from Borrowers the approval of such ▇▇▇▇▇▇’s investment committee approval (in such investment committee’s sole discretion) with respect thereto.
(c) Upon the effectiveness of any Incremental Facility, all references in this Agreement and any Guarantor 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 documentation as it deems 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 necessary. required by Administrative Agent is authorized to enter intoensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Facility, on behalf which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the LendersSecurity Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent. This Section 2.27 supersedes any amendment provisions in Section 10.1 to this Agreement or any the contrary (other document as may than amendments of provisions that are described in Section 10.1(a), which shall be necessary to incorporate the terms of any new Incremental Revolving Facility herein thereingoverned by Section 10.1).
Appears in 1 contract
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) The Borrower may at any time prior or from time to time after the Closing Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to requestrequest one or more additional tranches of term loans, upon ten revolving facilities or letter of credit facilities (10) Business Days prior written noticeeach, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”), provided that (i) up at the time and after the effectiveness of any Incremental Amendment referred to $50,000,000 (an aggregate increase of $21,250,000); provided howeverbelow, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent not available to issue letters of credit) had been fully used on the last day of such period and (iii) the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Borrower for which financial statements are available, determined as if any term loans under such Incremental Facility had been outstanding on the last day of such period, shall be less than 2.5 to 1.0. 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) and there shall be not more than 3 requests for Incremental Facilities. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed $200,000,000. Any Incremental Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Maturity Date or would occur at have a weighted average life (if applicable) which is shorter than the time ofthen remaining average life of the Loans, or after giving effect to, such request; and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such 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 pay a closing fee 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 an amount equal the primary syndication thereof (with OID being equated to one half of one percent (0.50%interest based on assumed three-year life to maturity)) relating to any Incremental Facility exceeds the Applicable Margin relating to the Facility immediately prior to the effectiveness of the amount of applicable Incremental Amendment, the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply Applicable Margin relating to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from Lenders existing on adjusted to equal the Closing Date and such Lender’s Commitment Percentage of Applicable Margin relating to such Incremental Revolving Facility will be as Facility. Each notice from the Borrower pursuant to this Section 2.20 shall set forth on the signature page hereto, (iii) Borrowers shall execute amended requested amount and restated Revolving Credit Notes in favor proposed terms of the relevant Incremental Facility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Facility may be provided by any existing Lenders evidencing Lender or by any Eligible Assignee selected by the increase in Borrower (any such other financial institution or fund being called an “Additional Lender”), provided that the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have received evidence that all requisite corporate action and proceedings consented (not to be unreasonably withheld) 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 connection with the respect of Incremental Revolving Facility Facilities shall have been taken which evidence shall be in form and substance satisfactory become Commitments under this Agreement pursuant to Administrative Agent, and an amendment (vian “Incremental Amendment”) Administrative Agent shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 10.1(e) hereof. The Incremental Amendment may, without the consent of any other document 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 incorporate effect the terms provisions of this Section 2.20. The effectiveness of any new Incremental Revolving Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility herein thereinClosing 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 will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that 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.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Incremental Facility. Subject to the terms and conditions set forth herein, Borrowers shall have the right, (a) The Borrower may at any time prior or from time to time after the Closing Date, by notice to the end Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the TermLenders), to request, upon ten request one or more tranches of term loans (10each an “Incremental Term Facility”) Business Days prior written noticeor an increase in the amount of the Revolving Facility (each, an increase to the Maximum Revolving Advance Amount (the “Incremental Revolving Facility”) up to $50,000,000 (; together with the Incremental Term Facilities, each an aggregate increase of $21,250,000“Incremental Facility”); provided howeverthat (i) at the time of such request, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the Term, and each increase shall not exceed $10,625,000; (b) no Default or Event of Default shall have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of one percent (0.50%) of the amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basiscontinuing, (ii) the Borrower shall be in compliance with the covenants contained in Article VI determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period; provided, that, for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the pro forma financial covenant compliance condition in this clause (ii) shall be computed based on the immediately preceding four fiscal quarter period for which financial statements are available prior to the date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed $150,000,000. Each Incremental Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the 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 greater than 5% of the original principal amount of such Incremental Term Facility per year (except with respect to any Incremental Term Facility to the extent required for such Incremental Term Facility to be tax fungible with (i.e., to be treated as part of the same issue as) a previously issued Incremental Term Facility in accordance with Treasury Regulation 1.1275-2(k)), (iii) the Applicable Margin, Applicable Percentage and the other terms and conditions applicable to any Incremental Revolving Facility shall be obtained from Lenders existing on the Closing Date and such Lender’s Commitment Percentage of such Incremental same as those applicable to the Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance AmountFacility, (iv) the conditions in Section 8.2 Applicable Margin relating to any Incremental Term Facility shall have been satisfied, be determined by the Borrower and the Lenders providing such Incremental Term Facility and (v) any Incremental Term Facility shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such Incremental Term Facility; provided that to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility and the Lenders or other 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 financial institution or fund being called an “Additional Lender”); provided that the Administrative Agent, the Swingline Lender, and the Issuing Bank shall have received evidence consented (not to be unreasonably withheld) 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 Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent pursuant to Section 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 (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all requisite corporate action 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 proceedings such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. Additionally, after giving effect to 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 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 shall have been taken which evidence Closing Date, each Lender and each Additional Lender, if any, shall be in form deemed to have irrevocably sold, transferred, conveyed and substance satisfactory assigned to Administrative Agenteach other Lender and each other Additional Lender, if any (and (vi) Administrative Agent without, for the avoidance of doubt, increasing or decreasing the aggregate Commitments of such Lender or such Additional Lender after giving effect to such Incremental Revolving Facility), such portion of its Revolving Commitments and Revolving Loans such that, after giving effect to such assignment, each Lender and each Additional Lender, if any, shall have received from Borrowers and any Guarantor such other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf hold a Pro Rata Share of each of the Lenders, any amendment Revolving Commitments and Revolving Loans equal to this Agreement such Lender’s or any other document as may be necessary to incorporate such Additional Lender’s Pro Rata Share of the terms of any new Incremental Aggregate Revolving Facility herein thereinCommitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)