Incremental Facility. (a) On or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent. (b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9 (c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) On The Borrower may from time to time after the Amendment No. 7 Effective Date request one or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of more increases in the Revolving Credit Facility by Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an aggregate principal amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to exceed $20,000,000obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of their Affiliates and Approved Funds) may, in each caseits sole discretion, commit to participate in such Revolving Credit Commitment Increases by incurring incremental revolving credit forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent and the Borrower shall allocate the commitment under such Revolving Credit Commitment Increase among the Lenders and other Eligible Assignees from which the Administrative Agent has received written commitments with respect thereto. Each Revolving Credit Commitment Increase shall become effective on a date agreed by the Borrower and the Administrative Agent (each, an “Incremental FacilityCredit Extension Date”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with any case on or after the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms date of satisfaction of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
conditions precedent set forth in Section 3.5 (b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) On So long as no Event of Default under subsection 8(a) or before the Maturity Date8(f) exists or would arise therefrom, the Borrower will shall have the right, but not at any time and from time to time after the obligationRestatement Effective Date, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and warranties hereunder (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall be true not exceed, at the time the respective Incremental Commitment becomes effective (and correct in all material respects after giving effect to the Incremental Facility (except Incurrence of Indebtedness in connection therewith and the case application of proceeds of any such representation Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and warranty which expressly relates (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) 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 any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a given date supplement specifying the Tranche of Term Loans or periodrevolving commitments to be increased, such representation executed by the Borrower and warranty shall be true and correct each increasing Lender substantially in all material respects the form attached hereto as of Exhibit G (the respective date “Increase Supplement”) or for by each Additional Incremental Lender substantially in the respective periodform attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this subsection 2.5, and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Default 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) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event of Default shall have occurred and are required to be continuing applied to repay the Initial Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the Initial Term Loans (after giving effect theretoto any amendment in accordance with subsection 10.1(d)(v)); (ii) the Borrower shall no Lender will be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect required to the provide any such Incremental FacilityCommitment unless it so agrees; and (iii) all other terms the maturity date and the weighted average life to maturity of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.Term Loan
Appears in 1 contract
Incremental Facility. (a) On The Borrower may from time to time after the Amendment No. 5 Effective Date request one or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of more increases in the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments Commitments (each, an a “Incremental FacilityRevolving Credit Commitment Increase”); provided that: provided, however, that (i) the aggregate amount of all representations Revolving Credit Commitment Increases (A) after the Amendment No. 5 Effective Date and warranties hereunder shall be true until (and correct in all material respects after giving effect to including) 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 last day of the respective date or for Amendment No. 5 Incremental Period shall not exceed $100,000,000 with such Revolving Credit Commitment Increases having the respective period, same terms and conditions as the case may beAmendment No. 5 Incremental Commitments and (B) and no Default or Event on the day after the last day of Default the Amendment No. 5 Incremental Period shall have occurred and be continuing after giving effect thereto; not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Borrower Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; an amount not less than $25,000,000 and (iiiiv) all other terms of the Incremental Facility any Revolving Credit Commitment Increase shall be substantially identical with permitted by the terms of the existing Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Facility except as reasonably approved Commitment Increase. Following the receipt by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated Agent of the Borrower’s request to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of obtain a Revolving Credit then outstandingCommitment Increase, the participations Administrative Agent shall promptly notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of their Affiliates and Approved Funds) may, in its sole discretion, commit to participate in such Revolving Credit Lenders Commitment Increases by forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent and the Borrower shall allocate the commitment under such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.Commitment Increase AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
Appears in 1 contract
Incremental Facility. (a) On or before The Company may from time to time amend this Agreement in order to provide to the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental Company additional revolving credit commitments loan facilities (each, an “Incremental Revolving Facility”) and additional term loan facilities (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”); , provided that: that (i) all representations the aggregate principal amount of the Incremental Facilities shall not exceed $100,000,000 and warranties hereunder (ii) each Incremental Facility shall be true in a minimum aggregate principal amount of $25,000,000. Each Incremental Facility will be secured and correct in guaranteed with the other Facilities on a pari passu basis. 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 and a final maturity no earlier than the Term Loan Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Other than amortization, pricing or maturity date, each Incremental Facility shall have the same terms as the comparable Facility or such terms as are reasonably satisfactory to the Administrative Agent and the Company, provided that if the Applicable Margin (which, for such purposes only, shall be deemed to include all material respects 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 but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to any Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the comparable Facility, and any Eurodollar or ABR floor applicable to the comparable Facility) relating to the comparable Facility immediately prior to the effectiveness of the applicable Incremental Facility by more than 0.25%, the Applicable Margin relating to the comparable Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility minus 0.25%. An Incremental Facility may be made available under this Agreement only if, after giving effect to thereto and the Incremental Facility use of proceeds thereof (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 the respective period, as the case may bex) and no Default or Event of Default shall have occurred exists and be continuing after giving effect thereto; (iiy) the Borrower shall be Company is in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants covenants set forth in subsection 8.1, recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available as if such Incremental Facility and the Indebtedness thereunder had been incurred on the first day of such period for purposes of calculating Consolidated EBITDA and using Consolidated Total Indebtedness as of the date of, and after giving effect to the to, such Incremental Facility; and (iii) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(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. Any additional bank, financial institution, existing Lender or other Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Company (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Company, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provided any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this subsection (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in subsection 6.2 (it being understood that all references to “Borrowing Date” in subsection 6.2 shall be deemed to refer to the Incremental Facility Closing Date). The proceeds of any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner used only for general corporate purposes (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental FacilityPermitted Acquisitions).
Appears in 1 contract
Incremental Facility. (a) On So long as no Event of Default under subsection 8(a) or before the Maturity Date8(f) exists or would arise therefrom, the Borrower will shall have the right, but not at any time and from time to time after the obligationRestatement Effective Date, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and warranties hereunder (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall be true not exceed, at the time the respective Incremental Commitment becomes effective (and correct in all material respects after giving effect to the Incremental Facility (except Incurrence of Indebtedness in connection therewith and the case application of proceeds of any such representation Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall be in compliance with all covenantshave delivered a certificate to the Administrative Agent, including, without limitation, pro forma certifying compliance with the Financial Covenants after giving effect to the financial test set forth in such clause. Any loans made in respect of any such Incremental Facility; Commitment (other than Supplemental Term Loan Commitments and (iiiSupplemental Revolving Commitments) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved made by the Administrative Agentcreating a new Tranche.
(b) Any Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility will Commitments. The Incremental Commitments (or any portion thereof) may be provided made by any existing Lenders Lender or by any other bank or other Persons who become financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders in connection therewithtogether with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that no existing if such Additional Incremental Lender will is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar roleunreasonably withheld or delayed) in connection with the Incremental Facility and shall be exclusively entitled required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to any underwritingthe provisions of subsections 10.6(h) and 10.6(i), arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon mutatis mutandis, to the effectiveness of each Incremental Facility, same extent as if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental FacilityCommitments and related Obligations had been obtained by such Lender by way of assignment).
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), the Borrower will have the rightmay request (but subject, but not the obligationin each case, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio (and, following a Junior Debt Incurrence Event, the Consolidated Senior Net Leverage Ratio) will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided that: (ifurther that the condition set forth in Section 5.2(e) all representations and warranties hereunder shall may be true and correct in all material respects after giving effect to satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred and be continuing or is continuing;
(iv) after giving pro forma effect thereto; (ii) to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental FacilityFacility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio (or, following a Junior Debt Incurrence Event, from the calculation of the Consolidated Senior Net Leverage Ratio) and in the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that, (A) prior to a Junior Debt Incurrence Eventthe March 31, 2024, Financial Statement Delivery Date, the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period and (iiiB) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger from and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwritingafter a Junior Debt Incurrence Eventthe March 31, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.2024,
Appears in 1 contract
Incremental Facility. (a) On or before the Maturity Date, The Borrower may from time to time amend this Agreement in order to provide to the Borrower will have the right, but not the obligation, to increase the committed amount additional term loan facilities and/or increased term loan commitments in respect of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments or any other existing term loan facility hereunder (each, an “Incremental Facility”); , provided thatthat (i) the aggregate principal amount of the Incremental Facilities and the First Lien Incremental Facilities shall not exceed $500,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000 and (iii) the Consolidated Senior Secured Leverage Ratio as of such date (determined on a pro forma basis after giving effect to the provision of such Incremental Facility) is less than or equal to 5.0 to 1.0. Each Incremental Facility will be secured and guaranteed with the Facility on a pari passu basis. Each Incremental 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 Facility and a final maturity no earlier than the Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Other than amortization, pricing or maturity date, each Incremental Facility shall have the same terms as the Facility or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, provided that if the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to any Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Facility, and any Eurodollar or ABR floor applicable to the Facility) relating to the Facility immediately prior to the effectiveness of the applicable Incremental Facility by more than 0.25%, the Applicable Margin relating to the Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility minus 0.25%. With respect to increases in the term loan commitments under the Facility or any other existing term loan facility, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. 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.
(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 be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this subsection (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of the following conditions precedent: (i) all each of the representations and warranties hereunder made in or pursuant to the Loan Documents shall be true and correct in all material respects after giving effect on and as of such date as if made on and as of such date (unless stated to the Incremental Facility (except in the case of any such representation and warranty which expressly relates relate to a given date or periodspecific earlier date, in which case, such representation representations and warranty warranties shall be true and correct in all material respects as of the respective date or for the respective period, as the case may besuch earlier date) and (ii) no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants on such date or after giving effect to the Incremental Facility; and (iii) all other terms Facility to be made on such date. The proceeds of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner used only for general corporate purposes (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facilityacquisitions permitted under subsection 8.7).
Appears in 1 contract
Incremental Facility. (a) On or before the Maturity DateThe Borrower may request (but subject, the Borrower will have the right, but not the obligationin each case, to increase the committed amount conditions set forth in clause (b) below and the other terms set forth in this Section 2.27) the Lenders establish commitments (“Incremental Commitments”) to make an incremental term loan facility including term loan facilities in the form of the Revolving Credit Facility by commitments to make delayed draw term loans, in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Facility”); provided that: that prior to the 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 Agreement.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) all the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least fifteen (15) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each existing Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility unless it elects to do so in its sole discretion and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent fifteen (15) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any additional bank, financial institution and other institutional lenders or investors, subject to the 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 “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Amendment reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (c) are satisfied; provided that to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties hereunder shall as may be true and correct agreed by the lenders providing such Incremental Facility; provided further that the condition set forth in all material respects after giving effect to Section 5.2(c) may be satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof for such Incremental Facility, (A) the Consolidated First Lien Net Leverage Ratio shall not exceed 4.00 to 1.00 and (B) the ARR Total Leverage Ratio shall not exceed 0.665:1.00, in each case, calculated on a Pro Forma Basis as of the end of the most recent Test Period (assuming, in each case, that (x) in the case of any Incremental Facility being incurred at such time in the form of commitments to make delayed draw term loans, assuming such delayed draw term loans were fully drawn, and (y) the proceeds of any such Incremental Facility incurred at such time shall not be 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 Loans or are otherwise reasonably satisfactory to the Administrative Agent);
(vi) (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 occurred a final maturity date earlier (but may be later) than the Maturity Date, (C) the amortization schedule of any Incremental Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Loans made on the Closing Date and (D) the Borrower at its election with the consent of the Administrative Agent, and without requiring the consent of any Lender, may effect such amendments to the Loan Documents with respect to Incremental Loans as may be continuing after giving effect theretoreasonably 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;
(iiviii) any Incremental Loan shall rank pari passu (x) in right of payment of the Loans and (y) in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder or secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount, closing and upfront fees, initial commitment fees and similar fees, if any, but excluding customary arrangement, structuring, underwriting and amendment fees (“All-In Yield”)) applicable to any Incremental Facility shall not be more than 0.50% per annum higher than the All-In Yield with respect to the then existing Loans under the Closing Date Facilities unless the Applicable Margin with respect to such existing Loans under the Closing Date Facilities is increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Facility and the All-In Yield applicable to the then existing Loans under the Closing Date Facilities minus 0.50% per annum;
(x) any “most favored nation” pricing provision with respect to the Incremental Loans shall be determined by the Borrower and the Incremental Lenders providing such Incremental Loans; provided that no such “most favored nation” pricing provision shall be more favorable to the applicable Incremental Lenders than that contained in clause (ix) of this Section 2.27(b);
(xi) the Borrower shall be in compliance with have paid all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; fees and (iii) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) expenses in connection with the exercise of the applicable Incremental Facility and Facility;
(xii) all Incremental Loans shall be exclusively entitled to any underwriting, arrangement or similar fees denominated in connection therewith. 56 #96922345v9Dollars; and
(xiii) each Lender making the Incremental Loans shall have received the approval of such ▇▇▇▇▇▇’s investment committee approval (in such investment committee’s sole discretion) with respect thereto.
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters of Credit then outstandingall references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the participations of context otherwise requires, to include the Revolving Credit Lenders in term loans incurred pursuant to such Letters of Credit will Incremental Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be automatically adjusted entitled to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent. This Section 2.27 supersedes any provisions in Section 10.1 to the contrary (other than amendments of provisions that are described in Section 10.1(a), which shall be governed by Section 10.1).
Appears in 1 contract
Incremental Facility. Subject to all the terms of this Agreement, provided that (ax) On or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred exists and be is then continuing after giving effect thereto; and (iiy) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after (giving effect to the incurrence of such Indebtedness for Money Borrowed) with Section 7.8, from time to time on and after the Agreement Date, the Borrower may incur additional Indebtedness hereunder in the form of a revolving credit or term loan facility (an "Incremental Facility; ", and all such facilities, the "Incremental Facilities") in an aggregate principal amount that, when added to the aggregate principal amount of any previously extended Incremental Facilities, does not exceed $500,000,000. Each Incremental Facility shall (i) share in the Collateral to the same extent as the other Loans, (ii) be entitled to prepayments pursuant to Section 2.8 to the same extent as the other Loans, (iii) all not be secured by any collateral other than the Collateral or guaranteed by any Person other than pursuant to the Loan Documents, (iv) be in an aggregate principal amount of not less than $25,000,000, and in an integral multiple of $25,000,000 and (v) documented on other terms of and conditions that are reasonably satisfactory to the Administrative Agent. All loans under each Incremental Facility shall be substantially identical with issued at par. The interest rate, commitment fee rate, amortization schedule and maturity date for each Incremental Facility shall be as agreed upon between any Lenders agreeing to provide such Incremental Facility and the terms Borrower; provided, however, that (A) in the case of an Incremental Facility that shall be a term loan facility, the Weighted Average Life to Maturity of such Incremental Facility shall not be shorter than the Weighted Average Life to Maturity of the existing Revolving Credit Term B Loans (excluding any other Incremental Facility), and the final maturity date of such Incremental Facility except as reasonably approved by shall not be earlier than, the Administrative Agent.
Maturity Date and (bB) Any in the case of an Incremental Facility that shall be a revolving credit facility, the final maturity date of such Incremental Facility shall not be earlier than the Initial Maturity Date; provided further, however, that if the interest rate for any Incremental Facility would be more than 0.25% per annum higher than the interest rate applicable to the Term B Loans, the interest rate applicable to the Term B Loans shall be increased no later than the effectiveness of such Incremental Facility so that in no event after the effectiveness thereof shall the interest rate for such Incremental Facility be more than 0.25% per annum higher than the interest rate applicable to the Term B Loans. The lenders and the loans under each Incremental Facility will be provided by existing "Lenders" and "Loans" for all purposes of this Agreement and the other Loan Documents, and shall be treated, in terms of sharing of payments and other appropriate provisions, like (x) the Term B Lenders or other Persons who become and the Term B Loans in the case of an Incremental Facility that shall be a term loan facility and (y) the Revolving Lenders and the Revolving Loans in connection therewith; provided the case of an Incremental Facility that no existing Lender shall be a revolving credit facility. The Incremental Facility will be obligated documented pursuant to provide any portion of any Incremental Facility. Cadence shall have an amendment to this Agreement and, as appropriate, the exclusive right other Loan Documents, executed by the Borrower, each Person providing a commitment to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall the Administrative Agent. Such amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be exclusively entitled to any underwritingnecessary, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations opinion of the Revolving Credit Lenders Administrative Agent, to effect the provisions of this Section 2.1(f). An Incremental Facility may be established at any time at the request of the Borrower, upon notice to the Administrative Agent and the Lenders, and subject only to the agreement of Persons who, in such Letters of Credit will be automatically adjusted their sole discretion, choose to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender participate in connection with such Incremental Facility. No Lender shall have any obligation to participate in any Incremental Facility unless and until it commits to do so. The Administrative Agent and the Borrower shall provide all then existing Lenders with an opportunity to commit to each Incremental Facility on an up to a ratable basis (the period in which any Lender shall be required to make a decision on its participation in such Incremental Facility being in no event be less than ten (10) after giving effect Business Days from the date of delivery by the Borrower of a notice inviting such participation), and if sufficient commitments cannot be obtained in such manner, shall provide other lenders with such opportunity (and for existing Lenders with the ability to commit for more than their ratable portion), and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the applicable Incremental FacilityAdministrative Agent and the Borrower.
Appears in 1 contract
Incremental Facility. (a) On or before Upon notice to the Maturity Administrative Agent (whereupon the Administrative Agent shall promptly notify the Lenders), at any time after the Closing Date, the Borrower will have may from time to time request (i) additional commitments under the rightTerm Facility (each an “Incremental Term Commitment” and all of them, but not collectively, the obligation, to increase “Incremental Term Commitments”) and/or (ii) increases in the committed aggregate amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in Commitments (each case, by incurring incremental revolving credit commitments (eachsuch increase, an “Incremental FacilityRevolving Commitment” and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that: that (x) both before and after giving effect to any such addition(s), the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 after the Closing Date (excluding, for the avoidance of doubt, each Term Loan A-2 added on the Closing Date) shall not exceed $400,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and (z) there shall be not more than three (3) such increases after the Closing Date.
(a) Any Loans made in respect of any Incremental Revolving Commitments shall be made by increasing the Total Revolving Commitment with the same terms (including pricing) as the existing Revolving Loans (each, a “Revolving Commitment Increase”). Any Loans made in respect of any Incremental Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, by either (i) issuing a commitment to make term loans with the same terms (including pricing) as an existing Series of Term Loans, or (ii) creating a new Series of terms loans (an “Incremental Term Loan Tranche”). Any Revolving Commitment Increases or Incremental Term Loans (A) shall not have a final maturity earlier than the Revolving Facility Final Maturity Date or LEGAL02/38433738v11 Term Facility Final Maturity Date or a weighted average life which is shorter than the then remaining average life of Term Loans A-2, as the case may be, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loans and (C) shall have such other terms and provisions, to the extent not consistent with the Revolving Loans or the Term Loans, as the case may be, as are reasonably satisfactory to the Joint Lead Arrangers.
(b) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the Incremental Commitments. Incremental Term Loans (or any portion thereof) may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank, financial institution or other investing entity (any such bank, financial institution or other investing entity, an “Incremental Lender”), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent (and, in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender) shall have consented (not to be unreasonably withheld) to such Lender's or Incremental Lender's, as the case may be, making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required under Section 12.4 for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender's Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) If any Incremental Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of LEGAL02/38433738v11 the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties hereunder shall be contained in Section 7 and the other Credit Documents are true and correct in all material respects after giving effect on and as of the Incremental Commitments Effective Date, except to the Incremental Facility (except extent that such representations and warranties specifically refer to an earlier date, in the which case of any such representation and warranty which expressly relates to a given date or period, such representation and warranty they shall be have been true and correct in all material respects as of the respective date or for the respective periodsuch earlier date, as the case may be(B) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants exists before or after giving effect to the Incremental Facility; such addition and (iiiC) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other terms Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the case of an Incremental Term Commitment, shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Facility Term Commitment, and such Incremental Term Loan shall be substantially identical with a “Term Loan” for all purposes of this Agreement and the terms of other Credit Documents (except that the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentinterest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be different).
(bd) Any Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Facility Lender, if any, in each case providing a portion of such Revolving Commitment Increase (each an “Incremental Revolving Lender”), and each such Incremental Revolving Lender will automatically and without further act be provided deemed to have assumed, a portion of such Revolving Lender's risk participation hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of such risk participations, the percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by existing Lenders or other Persons who become Lenders each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in connection therewith; its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) prepayment made in connection with the Incremental Facility and taking of any such steps shall be exclusively entitled accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9transaction that may be effected pursuant to the immediately preceding sentence.
(ce) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders This Section 2.14 shall supersede any provisions in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect Section 12.12 to the applicable Incremental Facility.contrary. LEGAL02/38433738v11
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) On The Borrower may at any time or before from time to time after the Maturity ClosingSecond Amendment Effective Date, by notice to the Borrower will have Administrative Agent (whereupon the rightAdministrative Agent shall promptly deliver a copy to each of the Lenders), but not request one or more tranches of term loans (each an “Incremental Term Facility”) or an increase in the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Revolving Facility”; together with the Incremental Term Facilities, each an “Incremental Facility”); provided that: that (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to at the Incremental Facility (except in the case time of any such representation and warranty which expressly relates to a given date or periodrequest, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; continuing, (ii) the Borrower shall be in compliance with all covenants, including, without limitation, the covenants contained in Article VI determined on a pro forma compliance 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 Financial Covenants after giving effect 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 Incremental Facility; date on which the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (iii) all other terms 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 substantially identical with 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 terms of limit set forth in the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentimmediately preceding sentence).
(bi) Any Incremental Facility will 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 the same as those applicable to the Revolving Facility, (iv) the Applicable Margin relating to any Incremental Term Facility shall 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 by 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 who become Lenders in connection therewithwilling 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 no existing the Administrative Agent, the Swingline Lender, and the Issuing Bank shall have 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 references to the date of a Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions, if any, as the parties thereto shall agree; provided, however, that for an Incremental Facility that is requested in connection with the financing of a Limited Condition Acquisition, the effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of only such conditions precedent as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstandingunless it so agrees. The Administrative Agent and the Lenders hereby agree that, other than with respect to any Incremental Revolving Facility, the participations of minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted transactions effected pursuant to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) 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 applicable 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 Closing Date, each Lender and each Additional Lender, if any, shall be deemed to have irrevocably sold, transferred, conveyed and assigned to each other Lender and each other Additional Lender, if any (and without, for the 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 hold a Pro Rata Share of each of the Revolving Commitments and Revolving Loans equal to such Lender’s or such Additional Lender’s Pro Rata Share of the Aggregate Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Teradyne, Inc)
Incremental Facility. (a) On So long as no Event of Default under subsection 8(a) or before the Maturity Date8(f) exists or would arise therefrom, the Borrower will shall have the right, but not at any time and from time to time after the obligationRestatement Effective Date, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and warranties hereunder (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall be true not exceed, at the time the respective Incremental Commitment becomes effective (and correct in all material respects after giving effect to the Incremental Facility (except Incurrence of Indebtedness in connection therewith and the case application of proceeds of any such representation Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and warranty which expressly relates (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) 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 any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a given date supplement specifying the Tranche of Term Loans or periodrevolving commitments to be increased, such representation executed by the Borrower and warranty shall be true and correct each increasing Lender substantially in all material respects the form attached hereto as of Exhibit G (the respective date “Increase Supplement”) or for by each Additional Incremental Lender substantially in the respective periodform attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b) or (c)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this subsection 2.5 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecuredon a pari passu basis therewith, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Default 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) so long as any Initial Term Loans, Incremental B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event of Default shall have occurred and are required to be continuing applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the Initial Term Loans, Incremental B-2019 Term Loans or IncrementalRepriced B-2021 Term Loans or Replacement B-2024 Term Loans (after giving effect theretoto any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the InitialRepriced B-2021 Term Loan Maturity Date or the Replacement B-2024 Term Loan Maturity Date or the remaining weighted average life to maturity of the InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the InitialRepriced B-2021 Term Loan Maturity Date or the Replacement B-2024 Term Loan Maturity Date or the remaining weighted average life to maturity of the InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as applicable); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; (v) such Incremental Commitment Amendment may provide for (1) the inclusion, as appropriate, of Additional Incremental Lenders in compliance any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) the amendment of the definitions of “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the InitialRepriced B-2021 Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date andor the Replacement B-2024 Term Loan Maturity Date or the remaining weighted average life to maturity of such Incremental Termthe Repriced B-2021 Term Loans or the Replacement B-2024 Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after this Agreement as in effect prior to giving effect to the Incremental Facility; Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the InitialRepriced B-2021 Term Loans or the Replacement B-2024 Term Loans (except to the extent permitted by clause (iii), (iv), (v) all other terms of the Incremental Facility or (vi) above), they shall be substantially identical with reasonably satisfactory to the terms of the existing Revolving Credit Facility except as reasonably approved by Borrower and the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), the Borrower will have the rightmay request (but subject, but not the obligationin each case, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided that: (ifurther that the condition set forth in Section 5.2(e) all representations and warranties hereunder shall may be true and correct in all material respects after giving effect to satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred and be continuing or is continuing;
(iv) after giving pro forma effect thereto; (ii) to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with all covenantsthe then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in the case of a Revolving Commitment Increase, includingassuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period, without limitation, pro forma and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the Financial Covenants after giving effect to the Incremental Facility; requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all other terms outstanding Loans, participations hereunder in Letters of the Incremental Facility Credit and participation hereunder in Swingline Loans held by each Lender shall be substantially identical reallocated among the Lenders (including any newly added Lenders) in accordance with the terms of the existing Lenders’ respective revised Revolving Credit Facility except as Percentages and L/C Percentages, pursuant to procedures reasonably approved determined by the Administrative Agent.;
(bvi) Any any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date (but may be later), and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be provided guaranteed by existing Lenders any Person other than a Guarantor hereunder and shall not be secured by any property or assets other Persons who become Lenders than the Collateral;
(ix) the all-in connection therewith; provided that no existing Lender will be obligated yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to provide any portion of any Incremental Facility. Cadence Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term Loans minus 0.50%; and
(x) the Borrower shall have the exclusive right to act as arranger paid all fees and bookrunner (including any similar role) expenses in connection with the exercise of the applicable Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Facility.
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters (i) in the case of Credit then outstandinga Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the participations Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Revolving Credit Lenders in such Letters of Credit will Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be automatically adjusted to reflect perfected under the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), the Borrower will have the rightmay request (but subject, but not the obligationin each case, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio (and, following a Junior Debt Incurrence Event, the Consolidated Senior Net Leverage Ratio) will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided that: (ifurther that the condition set forth in Section 5.2(e) all representations and warranties hereunder shall may be true and correct in all material respects after giving effect to satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred and be continuing or is continuing;
(iv) after giving pro forma effect thereto; (ii) to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with all covenantsthe then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio (or, includingfollowing a Junior Debt Incurrence Event, without limitationfrom the calculation of the Consolidated Senior Net Leverage Ratio) and in the case of a Revolving Commitment Increase, pro forma assuming the Revolving Facility was fully drawn); provided that, (A) prior to a Junior Debt Incurrence Event, the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period and (B) from and after a Junior Debt Incurrence Event, (A) the Consolidated Senior Net Leverage Ratio shall be equal to or less than 2.75:1.00 and (B) the Consolidated Net Leverage Ratio shall be equal to or less than 3.75:1.00, and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the Financial Covenants after giving effect to the Incremental Facility; requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all other terms outstanding Loans, participations hereunder in Letters of the Incremental Facility Credit and participation hereunder in Swingline Loans held by each Lender shall be substantially identical reallocated among the Lenders (including any newly added Lenders) in accordance with the terms of the existing Lenders’ respective revised Revolving Credit Facility except as Percentages and L/C Percentages, pursuant to procedures reasonably approved determined by the Administrative Agent.;
(bvi) Any any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier (but may be later) than the Term Loan Maturity Date and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be provided guaranteed by existing Lenders any Person other than a Guarantor hereunder and shall not be secured by any property or assets other Persons who become Lenders than the Collateral;
(ix) the all-in connection therewith; provided that no existing Lender will be obligated yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to provide any portion of any Incremental Facility. Cadence Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term Loans minus 0.50%; and
(x) the Borrower shall have the exclusive right to act as arranger paid all fees and bookrunner (including any similar role) expenses in connection with the exercise of the applicable Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Facility.
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters (i) in the case of Credit then outstandinga Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the participations Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Revolving Credit Lenders in such Letters of Credit will Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be automatically adjusted to reflect perfected under the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) On So long as no Event of Default under subsection 8(a) or before the Maturity Date(f) exists or would arise therefrom, the Borrower will shall have the right, but not at any time and from time to time after the obligationClosing Date, (i) to increase request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the committed “Incremental Term Loan Commitments”), and (ii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”) (together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) either (x) after giving pro forma effect to any Incurrence or Discharge of Indebtedness on the date the applicable Incremental Commitment Amendment (as defined below) becomes effective, the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00 (and the Borrower shall deliver a certificate, no later than two Business Days (or such shorter period as agreed between the Borrower and the Administrative Agent) prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00) or (y) the aggregate then outstanding principal amount of the Revolving Credit Facility by an aggregate principal amount sum of all unutilized Incremental Commitments and Incremental Loans (excluding the Initial Incremental Term Loan Commitments and the Initial Incremental Term Loans incurred pursuant to the First Amendment) does not to exceed $20,000,000750 million, in each case(ii) upon the effectiveness of any Incremental Commitment Amendment (as defined below), by incurring incremental revolving credit commitments no Default or Event of Default shall have occurred and be continuing and (each, an “Incremental Facility”); provided that: (iiii) all the representations and warranties hereunder set forth in Section 4 shall be true and correct in all material respects after giving effect to on and as of the Incremental Facility (except in the case effective date of any such representation Incremental Commitment Amendment (although any representations and warranty which warranties that expressly relates relate to a given date or period, such representation and warranty shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event ). Any loans made in respect of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower any such Incremental Commitment shall be in compliance with all covenantsmade by creating a new Tranche; provided that any Incremental Term Loans may, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the extent provided in the applicable Incremental Facility; and (iii) all other terms of the Commitment Amendment, be designated as an increase in Initial Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative AgentTerm Loans.
(b) Any Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Facility will Commitments. The Incremental Commitments (or any portion thereof) may be provided made by any existing Lenders Lender or by any other bank or financial institution (any such Lender or other Persons who become Lenders bank or other financial institution, an “Additional Lender”) subject, in connection therewith; provided that no existing Lender will be obligated to provide any portion the case of any Incremental Facility. Cadence shall have Revolving Commitments (if such Additional Lender is not already a Lender hereunder or any affiliate of a Lender hereunder) to the exclusive right consent of the Administrative Agent (such consent not to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement unreasonably withheld or similar fees in connection therewith. 56 #96922345v9delayed).
(c) Upon the effectiveness of each Incremental FacilityCommitments shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, if there are Letters of Credit then outstandingas appropriate, the participations other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Revolving Credit Lenders in such Letters Borrower and the Administrative Agent, to effect the provisions of Credit this subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be automatically adjusted secured on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to reflect the Applicable Percentages Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) any mandatory prepayment provisions that do not also apply to the Term Loans on a pro rata basis, so long as any Term Loans are outstanding; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of such Incremental Commitments shall be no earlier than the Term Loan Maturity Date; (iv) the weighted average life to maturity of all Incremental Term Loans of any Tranche shall be no shorter than the Revolving Credit Lenders weighted average life to maturity of the Term Loans; (including each Person who becomes a Lender in connection with such Incremental Facilityv) after giving effect interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall 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 Facility.Term Loan
Appears in 1 contract
Sources: Credit Agreement (Trans-Porte, Inc.)
Incremental Facility. Subject to all the terms of this Agreement, provided that (ax) On or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred exists and be is then continuing after giving effect thereto; and (iiy) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after (giving effect to the incurrence of the Funded Debt resulting from the Borrowing of the Incremental Facility Loans) with Section 7.18, the Borrower may incur additional Debt hereunder in the form of term loans (the “Incremental Facility; ”) in an aggregate principal amount that does not exceed $50,000,000. The Borrower may request up to three Borrowings under the Incremental Facility prior to the termination of the Incremental Facility in an aggregate minimum principal amount of $10,000,000. The Incremental Facility shall, among other things, (a) share in the Collateral to the same extent as the other Loans, (b) be entitled to prepayments pursuant to Section 3.03 to the same extent as the other Term Loans, (c) not be secured by any collateral other than the Collateral that secures the Loans or guaranteed by any Person other than pursuant to the Credit Documents with respect to the Loans, and (iiid) all be documented on other terms and conditions that are reasonably satisfactory to the Administrative Agent. The interest rate, commitment fee rate, amortization schedule and maturity date for the Incremental Facility shall be as agreed upon between any Lenders agreeing to provide the Incremental Facility and the Borrower; provided that (i) the final maturity date of the Incremental Facility shall not be substantially identical with earlier than the terms Tranche B Term Loan Maturity Date or later than May 1, 2011 if any Discount Notes are outstanding on such date, (ii) the interest earned on the Incremental Facility Loans shall be less than or equal to the interest earned on the Tranche B Term Loans and (iii) the Incremental Facility Loans shall have a weighted average life to maturity greater than the weighted average life to maturity of the existing Revolving Credit Facility except as reasonably approved by Tranche B Term Loans. The lenders and the Administrative Agent.
(b) Any loans under the Incremental Facility will be provided by existing Lenders or “Lenders” and “Term Loans” for all purposes of this Agreement and the other Persons who become Lenders Credit Documents, and shall be treated as such, in connection therewith; provided that no existing Lender terms of sharing of payments and other appropriate provisions. The Incremental Facility will be obligated documented pursuant to provide any portion of any Incremental Facility. Cadence shall have an amendment to this Agreement and, as appropriate, the exclusive right other Credit Documents, executed by the Borrower, each Person providing a commitment to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and the Administrative Agent. Such amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.07. The Incremental Facility may be established at any time at the request of the Borrower, upon notice to the Administrative Agent and the Lenders, and subject only to the agreement of Persons who, in their sole discretion, choose to participate in the Incremental Facility. No Lender shall have any obligation to participate in the Incremental Facility unless and until it commits to do so. The Administrative Agent and the Borrower shall provide all then existing Lenders with an opportunity to commit to the Incremental Facility on a ratable basis (the period in which any Lender shall be exclusively entitled required to make a decision on its participation in the Incremental Facility being in any underwritingevent no less than ten Business Days from the date of delivery by the Borrower of a notice inviting such participation), arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, and if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders sufficient commitments cannot be obtained in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection manner, shall provide other lenders with such Incremental Facility) after giving effect opportunity (and for existing Lenders with the ability to commit for more than their ratable portion), and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the applicable Incremental FacilityAdministrative Agent and the Borrower.
Appears in 1 contract
Incremental Facility. (a) On or before Subject to the Maturity Dateterms and conditions set forth herein, the Borrower will Borrowers shall have the right, but not at any time up to three (3) years after the obligationClosing Date, to increase incur additional Indebtedness under this Credit Agreement in the committed amount form of one or more increases to the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in Committed Amount and/or additional term loan facilities (each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”)) in an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility:
(a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Borrowers’ Obligations and will be secured and guaranteed with the other Loans on a pari passu basis;
(b) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available; provided that: that (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to the if such Additional Loan is a Term Loan (an “Additional Term Loan”) (A) such Incremental Facility shall mature no earlier than the Term Loan Maturity Date and (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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (iiB) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect weighted average life to the Incremental Facility; and (iii) all other terms maturity of the Incremental Facility shall be longer than or substantially identical with similar to the terms weighted average life to maturity of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
Term Loan and (bii) Any if such Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated is used to provide any portion of any Incremental Facility. Cadence shall have increase the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Revolving Committed Amount, such Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9mature no earlier than the Revolving Commitment Termination Date;
(c) Upon should the effectiveness of each interest rate margin on the then-current Term Loans or Revolving Loans, as applicable, be less than the interest rate margin on any Incremental Facility, if there are Letters the interest rate margin for the then-current Term Loans and Revolving Loans, as applicable, will be increased and/or additional fees will be paid to the existing Term Loan Lenders and/or Revolving Loan Lenders, as applicable, such that the interest rate margin on the then-current Term Loans or Revolving Loans will be 0.125% less than the interest rate margin on any Incremental Facility (taking into account upfront fees payable to the Lenders making any Incremental Facility);
(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 the Term Loans or the Revolving Loans, as applicable;
(e) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below;
(f) the Borrowers may borrow up to three Incremental Facilities and each Incremental Facility shall be in a minimum principal amount of $25,000,000;
(g) the proceeds of any Additional Loan will be used to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions;
(h) the conditions to Extensions of Credit then outstandingin Section 4.2 shall have been satisfied; 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 participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) Administrative Agent, demonstrating that, after giving effect to the applicable 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 shall exceed the commitments that the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the 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 Credit Document as may be reasonably necessary to incorporate the terms of any new Incremental Facility therein.
Appears in 1 contract
Incremental Facility. (a) On After the Closing Date and subject to the terms and conditions of this Agreement, the Borrower may request an Incremental Facility Commitment on any Business Day in the form of (i) one or before more new Term Loan facilities and/or (ii) an increase in the existing Term Loan by sending notice thereof to the Administrative Agent for distribution to the Lenders; provided, however, (A) the aggregate principal amount of any Incremental Facility Loan during the term of this Agreement shall not exceed the Incremental Facility Amount, (B) after giving effect on a Pro Forma Basis to such Incremental Facility Loan and any Permitted Acquisition or Investment made with the proceeds thereof, the Consolidated Total Net Leverage Ratio shall be less than the maximum amount permitted pursuant to Section 7.8(a), (C) the Borrower may not request an Incremental Facility Commitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Facility Loan and the anticipated use of proceeds thereof (unless the Lenders providing such Incremental Facility Loan otherwise agree), (D) (1) each request for an Incremental Facility Commitment shall be in a minimum principal amount of $5,000,000 and (2) on the effective date of the requested Incremental Facility Commitment (after giving effect thereto and the use of proceeds thereof) the aggregate principal amount of the outstanding Incremental Facility Loans shall not exceed the Incremental Facility Amount, (E) the maturity date for Incremental Facility Loans shall not be earlier than the date certain set forth in the definition of Term Loan Maturity Date, (F) the Weighted Average Life to Maturity of any Incremental Facility Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans and (G) except as set forth in this Section 2.17 with respect to maturity, amortization and all-in yield, any Incremental Facility Loans shall have the same terms as the existing Term Loans or shall have terms that are not more restrictive to the Borrower will and its Subsidiaries than the terms applicable to the existing Term Loans. Any Incremental Facility Commitment shall be governed by the related Notice of Incremental Facility Commitment, this Agreement and the other Loan Documents. The Borrower may seek commitments in respect of the Incremental Facility Commitments from existing Lenders and other lenders reasonably satisfactory to the Administrative Agent. The decision of any Lender to provide an Incremental Facility Commitment to the Borrower shall be at such Lender’s sole discretion and shall be made in writing. No Lender shall have an obligation to participate in any Incremental Facility Commitment. Amendments to this Agreement that are required to give effect to an Incremental Facility shall only require the rightconsent of the Borrower and Administrative Agent, but not except to the obligationextent that a specific Lender’s consent is otherwise required with respect to an issuance by such Lender of any Incremental Facility Commitment.
(b) Prior to the effectiveness of an Incremental Facility Commitment, the Borrower shall (i) deliver to increase the committed amount Administrative Agent for distribution to the Lenders a Notice of Incremental Facility Commitment in substantially the form of Exhibit F attached hereto and (ii) provide revised Projections to the Administrative Agent upon the reasonable request of the Administrative Agent, which shall be in substantially the same form as the Projections delivered to the Administrative Agent prior to the Closing Date and which shall set forth the Consolidated Total Net Leverage Ratio, after giving effect to such Incremental Facility Commitment (and the anticipated use of proceeds thereof). The Incremental Facility Commitment and each Loan made under the Incremental Facilities shall be in the form of and constitute an Advance that shall be made subject to all of the terms and conditions contained in this Agreement (including, without limitation, the conditions set forth in Section 3.2, except as otherwise provided in this Section 2.17) applicable to, and shall constitute and comprise a portion of, the Loans and Obligations and, except as otherwise provided in this Section 2.17, shall be on terms substantially consistent with, and no more favorable than, those applicable to the Term Loans.
(c) No Incremental Facility Commitment or Incremental Facility Loan shall by itself result in any reduction of the Revolving Commitment, Term Loan Commitment, Revolving Commitment Ratio or Term Loan Commitment Ratio of the Lender making such Incremental Facility Commitment.
(d) Incremental Facility Loans (i) subject to Section 2.17(a), shall be repaid as agreed to by the Borrower and the Lenders making such Incremental Facility Loans; (ii) shall for all purposes be Loans and Obligations hereunder and under the Loan Documents; (iii) shall, if requested by a Lender providing an Incremental Facility Commitment, be represented by Incremental Facility Notes in substantially the form of Exhibit F attached hereto; and (iv) shall rank pari passu with the other Loans for purposes of Sections 2.10 and 8.2.
(e) Subject to Section 2.17(a), unless otherwise agreed by the Credit Parties and the Administrative Agent, Incremental Facility by an aggregate principal amount not Loans shall be subject to exceed $20,000,000the pricing, interest rate and amortization provisions of this Agreement then applicable to Term Loans; provided, the interest rate margins (excluding arrangement, commitment, structuring and underwriting fees and amendment fees and other similar fees, in each case, not generally shared with other Lenders), upfront fees, original issue discount (calculated based on a four (4) year life to maturity) and the LIBOR floor, if any, applicable to an Incremental Facility Loan shall not be greater than the highest margin that may, under any circumstances (other than in the case of the Default Rate), be payable with respect to the Loans, upfront fees, original issue discount and LIBOR floor, (provided, that such differential between interest rate floors will be equated to the applicable all-in-yield for purposes of determining whether an increase to the interest rate under the initial Term Loan will be required, but only to the extent an increase in the interest rate floor in the initial Term Loan would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the initial Term Loan will be increased to the extent of such differential between interest rate floors if any, payable with respect to the Term Loans) plus 0.50% per annum, unless the interest rate with respect to the preexisting Loans is increased so as to be equal to the interest rate applicable to the applicable Incremental Facility Loan minus 0.50% per annum. Upon the making of an Incremental Facility Loan, such Loans shall for all purposes be deemed to be Term Loans hereunder.
(f) Incremental Facility Loans shall be requested by incurring incremental revolving credit commitments the Borrower pursuant to a request (eachwhich shall be in substantially the form of a Request for Advance) delivered in the same manner as a Request for Advance, an “but shall be funded pro rata only by those Lenders or Persons holding the related Incremental Facility”)Facility Commitment, as applicable.
(g) Each of the Credit Parties and the Lenders shall execute and deliver such agreements, documents and instruments reasonably requested by Administrative Agent to effectuate all of the foregoing provisions of this Section 2.17; provided that: , any opinion of counsel requested by the Administrative Agent in connection with an Incremental Facility Commitment may contain the qualification that no opinion is given with respect to the most favored nations provision set forth in clause (ie) all above.
(h) Notwithstanding anything to the contrary herein, if the proceeds of any Incremental Facility Loans will be used to consummate a Permitted Acquisition and the Borrower so elects and the Lenders providing such Incremental Facility Loan so agree, (x) in clause (a)(B) above shall apply only at the time the as of the date the definitive acquisition agreement (the “Subject Acquisition Agreement”) in respect thereof is executed (after giving effect on a Pro Forma Basis to the Incremental Facility Loan and the Permitted Acquisition or Investment as though they had occurred on such date), (y) the condition that at the time any Incremental Facility Loans are made (and after giving effect thereto), no Default or Event of Default shall exist, shall be limited to a condition that no Event of Default under Section 8.1(b), (f) or (g) shall exist at such time; provided that no Default or Event of Default shall exist as of the date the Subject Acquisition Agreement is executed (after giving effect on a Pro Forma Basis to the Incremental Facility Loan and the Permitted Acquisition or Investment as though they had occurred on such date) and (z) the condition that the representations and warranties hereunder of the Borrower and each other Credit Party contained in Article 4 or any other Loan Document shall be true and correct in all material respects after giving effect to the Incremental Facility (except and in the case of all respects if any such representation or warranty is already qualified by materiality) at the time that any such Incremental Facility Advance is made (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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) ), shall be limited to the accuracy of the representations and warranties that would constitute Specified Representations and the representations in the Subject Acquisition Agreement made by or with respect to the acquisition target, its subsidiaries and their respective businesses that are material to the interests of the Lenders, but only to the extent that the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms or an Affiliate of the Incremental Facility shall be substantially identical with Borrower has the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act terminate its or their obligations under the Subject Acquisition Agreement or to decline to consummate such Permitted Acquisition as arranger and bookrunner (including any similar role) a result of a breach of such representations in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental FacilityAcquisition Agreement.
Appears in 1 contract
Incremental Facility. (a) On or before From time to time upon at least 30 days’ prior written notice to the Maturity DateFacility Agent (which notice shall be promptly transmitted by the Facility Agent to each of the Lenders), the Borrower will shall have the right, but not subject to the obligationterms and conditions set forth below, to increase the committed aggregate amount of the Revolving Energy Hedging Commitment (any such increase referred to herein, as 45 Puget Opco Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, Agreement an “Energy Hedging Incremental FacilityLoan”); provided that: , (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to at the Incremental Facility (except in the case time of any such representation request and warranty which expressly relates to a given date or periodupon the effectiveness of any such Energy Hedging Incremental Loan, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing exist or would exist after giving effect thereto; , (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall be amended to reflect the revised Commitments of the Lenders and (vii) if any Loans are outstanding at the time of an increase in compliance with all covenantsthe Energy Hedging Commitment, includingthe Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), without limitation, pro forma compliance with the Financial Covenants one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the Incremental Facility; and increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (iii) all other terms based on its share of the Incremental Facility shall be substantially identical with the terms revised Energy Hedging Commitment) of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentoutstanding Energy Hedging Loans.
(b) Any Incremental Facility will be provided by 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 or other Persons who become Lenders in connection therewithLenders; provided that each Energy Hedging Issuing Bank and any Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or more bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that, any such Additional Lender (A) must be approved by the Borrower and the Facility Agent (such approval not to be unreasonably withheld) and each Energy Hedging Issuing Bank and (B) must become a Lender under this Agreement by execution and delivery of an Assignment and Assumption Agreement; provided further that, in no existing event or at any time shall any Borrower Affiliate or Macquarie Affiliate be a Lender will be obligated to provide for any portion of any Energy Hedging Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner Loans (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled by means of assignment or participation pursuant to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Section 10.07).
(c) Upon The Borrower shall use the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations proceeds of the Revolving Credit Lenders Energy Hedging Incremental Loans solely for the purpose for which the proceeds of the Energy Hedging Loans may be used.
(d) Except as otherwise set forth in such Letters of Credit will this Section 2.11, all Energy Hedging Incremental Loans shall be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect subject to the applicable Incremental Facilityterms and conditions set forth herein including any Applicable Margin.
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term A Loan Maturity DateDate (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan), the Borrower will have the rightmay request (but subject, but not the obligationin each case, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided that: (ifurther that the condition set forth in Section 5.2(e) all representations and warranties hereunder shall may be true and correct in all material respects after giving effect to satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred and be continuing or is continuing;
(iv) after giving pro forma effect thereto; (ii) to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with all covenantsthe then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in the case of a Revolving Commitment Increase, includingassuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period, without limitation, pro forma and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the Financial Covenants after giving effect to the Incremental Facility; requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all other terms outstanding Loans, participations hereunder in Letters of the Incremental Facility Credit and participation hereunder in Swingline Loans held by each Lender shall be substantially identical reallocated among the Lenders (including any newly added Lenders) in accordance with the terms of the existing Lenders’ respective revised Revolving Credit Facility except as Percentages and L/C Percentages, pursuant to procedures reasonably approved determined by the Administrative Agent.;
(bvi) Any any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier (but may be later) than the Term A Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan) and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the then-existing Term A Loan (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the then-existing Term B Loan (in the case of an Incremental Term Facility that is an incremental Term B Loan); Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be provided guaranteed by existing Lenders any Person other than a Guarantor hereunder and shall not be secured by any property or assets other Persons who become Lenders than the Collateral;
(ix) the all-in connection therewith; provided that no existing Lender will be obligated yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to provide any portion of any Incremental Facility. Cadence Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing (x) in the case of an Incremental Term Facility that is an incremental Term A Loan, the Term ATerm Loans (measured based on the all-in yield with respect to the then-existing Term A Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term A Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term A Loans minus 0.50% or (y) in the case of an Incremental Term Facility that is an incremental Term B Loan, the Term B Loans (measured based on the all-in yield with respect to the then-existing Term B Loans) unless the Applicable Margin with respect to the then-existing Term B Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term B Loans minus 0.50%; and
(x) the Borrower shall have the exclusive right to act as arranger paid all fees and bookrunner (including any similar role) expenses in connection with the exercise of the applicable Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Facility.
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters (i) in the case of Credit then outstandinga Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the participations Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Revolving Credit Lenders in such Letters of Credit will Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be automatically adjusted to reflect perfected under the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) On The Borrower may from time to time after the Effective Date request one or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of more increases in the Revolving Credit Facility by Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an aggregate principal amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to exceed $20,000,000obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of their Affiliates and Approved Funds) may, in each caseits sole discretion, commit to participate in such Revolving Credit Commitment Increases by incurring incremental revolving credit forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent and the Borrower shall allocate the commitment under such Revolving Credit Commitment Increase among the Lenders and other Eligible Assignees from which the Administrative Agent has received written commitments with respect thereto. Each Revolving Credit Commitment Increase shall become effective on a date agreed by the Borrower and the Administrative Agent (each, an “Incremental FacilityCredit Extension Date”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with any case on or after the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms date of satisfaction of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
conditions precedent set forth in Section 3.5 (b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) On or before Subject to the Maturity Dateterms and conditions set forth herein, the Borrower will shall have the right, but not at any time after completion of the obligationsyndication 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 increase incur additional Indebtedness under this Agreement in the committed amount form of an addition to the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments Term Loan (each, an the “Incremental Facility”)) by an aggregate amount of up to $25,000,000. The following terms and conditions shall apply to the Incremental Facility: (a) the loans made under the Incremental Facility shall constitute Obligations and Credit Party Obligations and will be secured and guaranteed with the other Loans on a pari passu basis, (b) the weighted average life and final maturity applicable to such Incremental Facility shall be determined at the time such Incremental Facility is made available; provided that: that (i) all representations such Incremental Facility shall mature no earlier than the Term Loan Maturity Date and warranties hereunder (ii) the weighted average life to maturity of the Incremental Facility shall be true 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 correct shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loans, (e) such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in all material respects each case in accordance with the terms set forth below, (f) the proceeds of such Incremental Facility will be used for purposes consistent with Section 3.11 hereof, (g) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (h) the Administrative Agent and the Lenders shall have received from the Borrower updated financial projections and an Officers’ Certificate, in each case in form and substance satisfactory to Administrative Agent, demonstrating that, after giving effect to the Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodIncremental Facility, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) and that the Borrower shall will be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect financial covenants set forth in Section 5.9 and (i) the Administrative Agent shall have received such other documentation as it may reasonably request, 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; and (iii) all other terms . If, upon the date that is fifteen Business Days after the existing Lenders are invited by the Administrative Agent to participate in such Incremental Facility, the amount of the 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 Credit Document as may be substantially identical with necessary to incorporate the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any new Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated therein, solely to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection extent such terms are consistent with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees terms as set forth in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facilitythis Section 2.5.
Appears in 1 contract
Sources: Credit Agreement (Amedisys Inc)
Incremental Facility. (a) On The Borrower may from time to time after the Amendment No. 4 Effective Date request one or before the Maturity Date, the Borrower will have the right, but not the obligation, to increase the committed amount of more increases in the Revolving Credit Facility by Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an aggregate principal amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to exceed $20,000,000obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of their Affiliates and Approved Funds) may, in each caseits sole discretion, commit to participate in such Revolving Credit Commitment Increases by incurring incremental revolving credit forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent and the Borrower shall allocate the commitment under such Revolving Credit Commitment Increase among the Lenders and other Eligible Assignees from which the Administrative Agent has received written commitments with respect thereto. Each Revolving Credit Commitment Increase shall become effective on a date agreed by the Borrower and the Administrative Agent (each, an “Incremental FacilityCredit Extension Date”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with any case on or after the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms date of satisfaction of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
conditions precedent set forth in Section 3.5 (b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.
Appears in 1 contract
Incremental Facility. (a) On or before the Maturity Date, The Borrower may from time to time amend this Agreement in order to provide to the Borrower will have the right, but not the obligation, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental increased revolving credit commitments (each, an “Incremental Revolving Facility”) and additional term loan facilities and/or increased term loan commitments in respect of the Term Facility or any other existing term loan facility hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”); , provided that: that the aggregate principal amount of the Incremental Facilities pursuant to this Section 4.25 shall not exceed (iA) all representations and warranties hereunder shall be true and correct in all material respects together with the aggregate initial principal amount of any Incremental Notes incurred pursuant to clause (A)(i) of the proviso to Section 8.2(q), $200,000,000 plus (B) an additional amount if, after giving effect to such additional amount, on a pro forma basis the Consolidated Senior Secured Leverage Ratio (assuming, (x) if such Incremental Facility is an Incremental Revolving Facility, such Incremental Revolving Facility is fully drawn as of such date and (except y) that any indebtedness incurred under an Incremental Facility is senior secured debt; whether or not such debt is senior or secured) does not exceed 4.75:1.00 as of the last day of the most recently ended fiscal quarter. Each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental 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 and a final maturity no earlier than the Term Loan Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Each Incremental Revolving Facility shall have the same terms as the Revolving Credit Facility and upon effectiveness of any Incremental Revolving Facility, the commitments thereunder shall be Revolving Credit Commitments for all purposes hereunder. Other than amortization, pricing or maturity date, each Incremental Term Facility shall have the same terms as the Term Facility or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, provided that if the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Term Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to any Incremental Term Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Facility, and any Eurodollar or ABR floor applicable to the Term Facility) relating to the Term Facility immediately prior to the effectiveness of the applicable Incremental Term Facility by more than 0.50%, the Applicable Margin relating to the Term Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Term Facility minus 0.50%. In the case of any Incremental Term Facility that increases the term loan commitments under the Term Facility or any other existing term loan facility, the manner in which such representation and warranty which expressly relates to a given date or period, such representation and warranty increase is implemented shall be true reasonably satisfactory to the Administrative Agent. An Incremental Facility may be made available under this Agreement only if, after giving effect thereto and correct in all material respects as the use of the respective date or for the respective period, as the case may be) and proceeds thereof no Default or Event of Default shall have occurred and be continuing after giving effect thereto; exists (ii) or with respect to any use of an Incremental Term Facility for a Permitted Acquisition that requires limited conditionality, no Default or Event of Default exists at the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with time of entry into the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentapplicable acquisition agreement for such Permitted Acquisition).
(b) Any An Incremental Facility will shall be provided made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lenders Lender or other Persons who become Lenders in connection therewith; provided Person that no elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender will or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any portion Incremental Facility, unless it so agrees. Commitments in respect of any Incremental FacilityFacility shall become Commitments under this Agreement. Cadence shall have An Incremental Facility Amendment may, without the exclusive right consent of any other Lenders, effect such amendments to act any Loan Documents as arranger and bookrunner may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this subsection (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any similar roleIncremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in connection with subsection 6.2 (it being understood that all references to “Borrowing Date” in subsection 6.2 shall be deemed to refer to the Incremental Facility and shall be exclusively entitled to Closing Date). The proceeds of any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit Facility will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders used only for general corporate purposes (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facilityacquisitions permitted under subsection 8.7).
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Incremental Facility. (a) On or before A Borrower may at any time after the Initial Utilization Date but prior to 180th day prior to the Maturity Date, Date with respect to the Borrower will have the right, but not the obligation, to increase the committed amount of Term Facility or the Revolving Credit Facility by an aggregate principal amount Facility, as the case may be, but in any event not to exceed $20,000,000, in each casemore than on five occasions, by incurring incremental revolving credit commitments notice to the Administrative Agent, request the addition of a new term loan facility (each, an “Incremental Term Facility”)) or an increase in the Revolving Credit Facility (each, a “Revolving Facility Increase” and, together with the Incremental Term Facilities, an “Incremental Facility”) pursuant to additional commitments (the “Incremental Commitments”) in an aggregate amount not to exceed $100,000,000 to be effective as of a date (the “Increase Date”) as specified in the related Incremental Assumption Agreement, which Increase Date must be (in the case of a Revolving Facility Increase) at least 90 days prior to the scheduled Maturity Date of the Revolving Credit Facility then in effect; provided that: provided, however, that (i) in no event shall the aggregate amount of all representations and warranties hereunder shall be true and correct in all material respects after giving effect to of the Incremental Commitments (for all Incremental Facilities in aggregate) exceed $100,000,000 (for, the avoidance of doubt, taking the aggregate of the Incremental Commitments for each Incremental Facility (except upon the Increase Date for such Incremental Facility and without taking into account any subsequent reduction in the same through utilization, repayment or prepayment, but, for the further avoidance of doubt, excluding, in the case of any Incremental Term Facility, (A) the Availability Period under which has already expired, any unutilized Incremental Commitments for such representation and warranty which expressly relates to a given date or period, Incremental Term Facility as at the end of such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may beAvailability Period) and no Default or Event of Default shall (B) any unutilized Incremental Commitments for any Incremental Term Facility that have occurred and be continuing after giving effect thereto; been cancelled in accordance with this Agreement, (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; and (iii) all other terms of the each new Incremental Facility shall be substantially identical in an aggregate amount of not less than $5,000,000, (iii) on the date of any such request by the Term Borrower for an Incremental Facility and on the related Increase Date, the applicable conditions set forth in Section 4.02 shall be satisfied, (iv) the requirements under Section 7.11 shall have been tested at least once after the Closing Date and such requirements would have been complied with the terms in respect of the existing latest Measurement Period (for which such requirements were tested under Section 7.11 by reference to financial statements delivered under Section 6.01) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof (as if such Incremental Facility was borrowed and utilized in full throughout such Measurement Period), (v) such Incremental Facility shall be used for working capital, acquisitions and other general corporate purposes not in contravention of any Law or Loan Document, (vi) (in the case of an Incremental Term Facility) the final maturity of such Incremental Term Facility shall be equal to or later than the final maturity of the Term Facility, and the weighted average life to maturity of such Incremental Term Facility shall be no shorter than the remaining weighted average life to maturity of the Term Facility, (vii) such Incremental Facility shall be (A) (in the case of an Incremental Term Facility) a new term facility on the same terms as the Term Facility except as to interest rates, scheduled repayment and final maturity (for the avoidance of doubt, there shall not be any voluntary or mandatory prepayment of such Incremental Term Facility except as expressly set forth in this Agreement) or (B) (in the case of an Revolving Facility Increase) an increase in the Revolving Credit Facility except as reasonably approved by existing prior to such Increase Date, in which case the Administrative Agentrequirements of Section 2.14(f) shall apply, (viii) the requirements of Section 2.14(d) are satisfied and (ix) only the Term Borrower may request for any Incremental Term Facility and only the Revolving Credit Borrower may request for a Revolving Facility Increase.
(b) Any The Administrative Agent shall promptly notify the Lenders of a request by the applicable Borrower for an Incremental Facility, which notice shall include (i) the proposed amount, type (whether Incremental Term Facility or Revolving Facility Increase), the interest rates, scheduled repayment dates and the final maturity of such Incremental Facility will be provided and (in the case of an Incremental Term Facility) whether Incremental Term Loans under such Incremental Term Facility shall share in any prepayment under Section 2.05(b) on a pro rata basis with the Term Loans, (ii) the proposed Increase Date and (iii) the date by existing which Lenders wishing to participate in such Incremental Facility must commit to an Incremental Commitment with respect to such Incremental Facility (the “Commitment Date”). Each Lender that is willing to participate in such Incremental Facility (each an “Increasing Lender”) shall give written notice to the Administrative Agent on or other Persons who become Lenders in connection therewith; provided prior to the Commitment Date of the amount of Incremental Commitment that no existing Lender will be obligated it is willing to provide any portion in respect of any such Incremental Facility. Cadence shall have If such Incremental Commitments provided by such Lenders exceed the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the amount of such requested Incremental Facility and Facility, such Incremental Commitments shall be exclusively entitled allocated among such Lenders willing to participate therein in such amounts as determined by the Administrative Agent. The failure of any underwritingLender to respond shall be deemed to be a refusal of such Lender to participate in such Incremental Facility. For the avoidance of doubt, arrangement or similar fees no Lender shall be obliged to participate in connection therewith. 56 #96922345v9any such Incremental Facility.
(c) Upon Promptly following the effectiveness applicable Commitment Date, the Administrative Agent shall notify the applicable Borrower as to the Incremental Commitments, if any, that the Lenders are willing to provide with respect to the requested Incremental Facility. If the aggregate Incremental Commitments that the Lenders are willing to provide with respect to such requested Incremental Facility on such Commitment Date is less than the requested amount of each such Incremental Facility, then the applicable Borrower (requesting such Incremental Facility) may extend offers to one or more Eligible Assignees (each an “Assuming Lender” and together with the Increasing Lenders, the “Incremental Facility Lenders”) to participate in any portion of such Incremental Facility in respect of which Incremental Commitments have not been provided by the Lenders as of the applicable Commitment Date; provided, however, that the Incremental Commitment of each such Eligible Assignee shall be in an amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if there less, the amount that would, when aggregated with the Incremental Commitments of each other Incremental Facility Lender for such Incremental Facility, equal to the aggregate requested Incremental Commitments for such Incremental Facility).
(d) On or before the Increase Date with respect to any Incremental Facility, the Administrative Agent shall have received the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of the Borrowers and Holdings approving such Incremental Facility and the corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrowers and Holdings, in a form reasonably satisfactory to the Administrative Agent;
(ii) an assumption agreement, in form and substance reasonably satisfactory to the Incremental Facility Lenders participating in such Incremental Facility, the applicable Borrower and the Administrative Agent (each an “Incremental Assumption Agreement”), duly executed by each of the Incremental Facility Lenders participating in such Incremental Facility, the Administrative Agent and the applicable Borrower, and such other documentation as the Administrative Agent may reasonably specify to evidence the Incremental Commitment of each such Incremental Facility Lender in respect of such Incremental Facility, shall have been executed and delivered to the Administrative Agent. Such Incremental Assumption Agreement shall provide that each such Incremental Facility Lender participating in such Incremental Facility that is not already a Lender at such time shall become party to this Agreement; and
(iii) such other documents, including an amendment to this Agreement, as the Administrative Agent may reasonably request. On the applicable Increase Date with respect to an Incremental Facility, upon fulfillment of the conditions set forth or referred to in Section 2.14(a) and in the immediately preceding sentence of this Section 2.14(d), the Administrative Agent shall notify the Incremental Facility Lenders and the applicable Borrower, on or before 11:00 a.m., by telecopier, of the establishment of such Incremental Facility on such Increase Date and shall record in the Register the relevant information with respect to each Incremental Facility Lender on such date.
(e) The maximum number of Borrowings that may be made under each Incremental Term Facility shall be one (or such higher number as may be agreed between the Term Borrower, the Lenders participating in such Incremental Term Facility and the Administrative Agent). Subject to the terms and conditions set forth herein, each Incremental Facility Lender severally agrees to make Incremental Term Loans (under such Incremental Term Facility) to the Term Borrower on any Business Day during the Availability Period for such Incremental Term Facility, in an aggregate amount not to exceed the unutilized amount of such Incremental Facility Lender’s Incremental Term Commitment for such Incremental Term Facility (for the avoidance of doubt, upon the making of any Incremental Term Loan by an Incremental Facility Lender under any Incremental Term Facility, the unutilized amount of such Incremental Facility Lender’s Incremental Term Commitment for such Incremental Term Facility shall be permanently reduced by the amount of such Incremental Term Facility so made). Amounts borrowed under any Incremental Term Facility and repaid or prepaid may not be re-borrowed.
(f) On each Increase Date for any Revolving Facility Increase, in the event any Revolving Credit Loans are Letters of Credit then outstanding, (i) each Incremental Facility Lender (participating in such Revolving Facility Increase) shall make available to the participations Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the Revolving Credit Lenders in (other than any such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Incremental Facility Lender in connection with such Incremental Facility) its capacity as such), in order to cause, after giving effect to the applicable Revolving Facility Increase and the application of such amounts to make payments to such other Revolving Credit Lenders, the Revolving Credit Loans to be held ratably by all Revolving Credit Lenders as of such date in accordance with their respective Revolving Credit Commitments, (ii) the Revolving Credit Borrower shall be deemed to have prepaid and re-borrowed each outstanding Borrowing of Revolving Credit Loans as of such Increase Date (with each such Borrowing to consist of Revolving Credit Loans with an Interest Period specified in a notice delivered by the Revolving Credit Borrower in accordance with the requirements of Section 2.02) and (iii) the Revolving Credit Borrower shall pay to the Revolving Credit Lenders the amounts, if any, payable under Section 3.05) as a result of such prepayment. To the extent that there are Participations in Letters of Credit or Swing Line Loans, each Revolving Credit Lender’s Participation in each of the Letters of Credit and the Swing Line Loans shall be re-calculated based on its respective Applicable Revolving Credit Percentage (after giving effect to such Revolving Facility Increase but subject to any adjustment pursuant to Section 3.07(a)(ii)).
(g) The Borrowers and the Administrative Agent are authorized to enter into such amendments to the Loan Documents (other than the Issuer Documents) as may be necessary or desirable to implement the provisions of this Section 2.14. The Administrative Agent shall as soon as practicable notify the Lenders of such amendments to the Loan Documents (other than the Issuer Documents). It is agreed that each Assuming Lender shall become party to this Agreement (as a Lender and an Incremental FacilityFacility Lender) upon the execution and delivery by such Assuming Lender, the Borrowers and the Administrative Agent of the applicable Incremental Assumption Agreement in accordance with this Section 2.14.
(h) None of the Incremental Facilities shall have the benefit of any Guarantee or any Lien or other security except for the Guaranty, the Subsidiary Guarantee and Liens under the Loan Documents (other than the Issuer Documents) for the benefit of all of the Secured Obligations.
(i) This Section 2.14 shall supersede any provisions in Sections 2.13 or 11.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Incremental Facility. (a) On or before The Company may from time to time prior to the Maturity Datethird anniversary of the Closing Date amend this Agreement in order to provide to the Company additional revolving loan facilities (each, an "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), provided that (i) the Borrower aggregate principal amount of the Incremental Facilities shall not exceed $400,000,000 and (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the right, but not the obligation, to increase the committed amount average life 104 of the Revolving Credit Facility, Tranche A Term Loan Facility by an aggregate principal amount not 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 exceed $20,000,000prepayments 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, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to thereto and the Incremental Facility (except in the case use of any such representation and warranty which expressly relates to a given date or periodproceeds thereof, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred exists and be continuing after giving effect thereto; (ii) the Borrower shall Company would be in compliance with all covenantsthe covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a PRO FORMA basis, including, without limitation, pro forma compliance as reasonably determined by the Company after consultation with the Financial Covenants after giving Administrative Agent, to give effect to the Incremental Facility; and (iii) all other terms of the Loans to be made pursuant to such Incremental Facility shall be substantially identical and the Permitted Acquisition and other permitted uses made with the terms proceeds thereof). Proceeds of Incremental Facilities may be used only for the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentpurposes specified in subsections 4.3 and 7.3.
(b) Any An Incremental Facility will shall be provided made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by existing 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 or other Persons who specified therein shall become Lenders in connection therewith; provided that no existing Lender will be obligated under this Agreement with respect to provide any portion of any such Incremental Facility. Cadence Each Incremental Facility Activation Notice shall have specify (i) the exclusive right respective Incremental Facility Amount of such Incremental Lenders, (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to act such Incremental Facility, (v) whether such Incremental Lenders may elect to decline prepayments as arranger specified in subsection 8.6 and bookrunner are entitled to share in mandatory prepayments as specified in subsection 8.6 and (including any similar rolevi) in connection with the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall be exclusively entitled otherwise duly completed. Each Incremental Lender that is a signatory to any underwritingan Incremental Facility Activation Notice severally agrees, arrangement on the terms and conditions of this Agreement, to make Incremental Loans to the Company on the date or similar fees in connection therewith. 56 #96922345v9
(c) Upon during the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders periods specified in such Letters of Credit will Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be automatically adjusted construed to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a obligate any Lender in connection with not party to such Incremental Facility) after giving effect Facility Activation Notice to the applicable execute an Incremental FacilityTerm Loan Activation Notice or to make Incremental Loans.
Appears in 1 contract
Incremental Facility. (a) On or before The Company may from time to time prior to the Maturity Datethird anniversary of the Closing Date amend this Agreement in order to provide to the Company additional revolving loan facilities (each, an "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), provided that (i) the Borrower aggregate principal amount of the Incremental Facilities shall not exceed $400,000,000 and (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the right, but not the obligation, to increase the committed amount average life of the Revolving Credit Facility, Tranche A Term Loan Facility by an aggregate principal amount not 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 exceed $20,000,000prepayments 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, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to thereto and the Incremental Facility (except in the case use of any such representation and warranty which expressly relates to a given date or periodproceeds thereof, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have occurred exists and be continuing after giving effect thereto; (ii) the Borrower shall Company would be in compliance with all covenantsthe covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a PRO FORMA basis, including, without limitation, pro forma compliance as reasonably determined by the Company after consultation with the Financial Covenants after giving Administrative Agent, to give effect to the Incremental Facility; and (iii) all other terms of the Loans to be made pursuant to such Incremental Facility shall be substantially identical and the Permitted Acquisition and other permitted uses made with the terms proceeds thereof). Proceeds of Incremental Facilities may be used only for the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentpurposes specified in subsections 4.3 and 7.
(b) Any An Incremental Facility will shall be provided made available hereunder upon delivery to the Administrative Agent of an Incremental Facility Activation Notice executed by existing 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 or other Persons who specified therein shall become Lenders in connection therewith; provided that no existing Lender will be obligated under this Agreement with respect to provide any portion of any such Incremental Facility. Cadence Each Incremental Facility Activation Notice shall have specify (i) the exclusive right respective Incremental Facility Amount of such Incremental Lenders, (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to act such Incremental Facility, (v) whether such Incremental Lenders may elect to decline prepayments as arranger specified in subsection 8.6 and bookrunner are entitled to share in mandatory prepayments as specified in subsection 8.6 and (including any similar rolevi) in connection with the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Credit Facility, the commitment fee therefor, and shall be exclusively entitled otherwise duly completed. Each Incremental Lender that is a signatory to any underwritingan Incremental Facility Activation Notice severally agrees, arrangement on the terms and conditions of this Agreement, to make Incremental Loans to the Company on the date or similar fees in connection therewith. 56 #96922345v9
(c) Upon during the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders periods specified in such Letters of Credit will Incremental Facility Activation Notice. Nothing in this subsection 16.13 shall be automatically adjusted construed to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a obligate any Lender in connection with not party to such Incremental Facility) after giving effect Facility Activation Notice to the applicable execute an Incremental FacilityTerm Loan Activation Notice or to make Incremental Loans.
Appears in 1 contract
Incremental Facility. (a) On or before Subject to the Maturity Dateterms and conditions set forth herein, the Borrower will Borrowers shall have the right, but not at any time up to two years after the obligationClosing Date, to increase incur additional Indebtedness under this Credit Agreement in the committed amount form of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in one or more additional term loan facilities (each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”)) in an aggregate amount of up to $75,000,000. The following terms and conditions shall apply to each Incremental Facility:
(a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Borrowers’ Obligations and will be secured and guaranteed with the other Loans on a pari passu basis;
(b) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available; provided that: that (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to the such Incremental Facility (except in shall mature no earlier than the case of any such representation Term Loan Maturity Date 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 the respective period, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect thereto; (ii) the Borrower shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect weighted average life to the Incremental Facility; and (iii) all other terms maturity of the Incremental Facility shall be longer than or substantially identical with similar to the terms weighted average life to maturity of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Term Loan;
(c) Upon the effectiveness interest rate margin applicable to any such Incremental Facility shall be the same as the interest rate margin for the Term Loan;
(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 the Term Loans;
(e) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below;
(f) the Borrowers may borrow up to three Incremental Facilities and each Incremental FacilityFacility shall be in a minimum principal amount of $25,000,000;
(g) the proceeds of any Additional Loan will be used to finance capital expenditures and working capital and other general corporate purposes, if there are Letters including Permitted Acquisitions;
(h) the conditions to Extensions of Credit then outstandingin Section 4.2 shall have been satisfied; 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 participations of the Revolving Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) Administrative Agent, demonstrating that, after giving effect to the applicable 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 shall exceed the commitments that the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the 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 Credit Document as may be reasonably necessary to incorporate the terms of any new Incremental Facility therein.
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), the Borrower will have may request (but subject to the right, but not the obligation, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”); provided that: . No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(i) all representations the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and warranties hereunder promptly after receipt thereof, the Administrative Agent shall be true and correct in all material respects after giving effect invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (except it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Increase in an amount that is less than its Aggregate Exposure Percentage of such requested Increase 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 case extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such 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 Incremental Facility;
(iii) each of the respective date or for the respective period, as the case may beconditions precedent set forth in Section 5.2(a) and (e) are satisfied with respect to such Incremental Facility;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing after giving effect thereto; at the time of the incurrence of such Incremental Facility and (iiB) the Borrower shall be in compliance with all covenantsthe then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (and in the case of a Revolving Commitment Increase, includingassuming the Revolving Facility was fully drawn); provided that the Consolidated Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(c) for such period, without limitation, pro forma and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the Financial Covenants after giving effect to the Incremental Facility; requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility then in effect;
(vii) any Incremental Term Loan Facility may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date (but may be later), and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other terms than a Guarantor hereunder and shall not be secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term Loans minus 0.50%;
(x) the Borrower shall have paid all fees and expenses in connection with the exercise of the applicable Incremental Facility (including those contemplated by the Fee Letter); and
(xi) there shall not be more than three exercises of the Incremental Facility shall be substantially identical with during the terms term of the existing Revolving Credit Facility except as reasonably approved by the Administrative Agentthis Agreement.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters (i) in the case of Credit then outstandinga Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the participations Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Revolving Credit Lenders in such Letters of Credit will Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be automatically adjusted to reflect perfected under the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include re-granting Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect market terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) On or before the Maturity Date, The Borrower may from time to time amend this Agreement in order to provide to the Borrower will have the right, but not the obligation, to increase the committed amount additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental or any other existing revolving credit commitments facility hereunder (each, an “Incremental Revolving Facility”) and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”); , provided that: that (i) all representations and warranties hereunder the aggregate principal amount of the Incremental Facilities shall not exceed $50,000,000, (ii) each Incremental Facility shall be true and correct in all material respects 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 (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and warranty shall be true and correct in all material respects the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the respective first day of the fiscal period covered thereby, (y) assuming, if such Incremental Facility is an Incremental Revolving Facility, such Incremental Revolving Facility is fully drawn as of such date or for and (z) disregarding the respective periodproceeds of such Incremental Facility in calculating such financial covenant and (iv) at the time and after giving effect to the incurrence of any Incremental Facility and the use of proceeds thereof, as the case may be) and no Default or Event of Default shall have occurred and be continuing after giving effect theretocontinuing. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The 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, (ii) the Borrower no Incremental Revolving Facility shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to the Incremental Facility; have any amortization and (iii) if, for any Incremental Facility, the Applicable Margin (which, for such purposes only, shall be deemed to include all other terms of the upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to such Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be substantially identical with deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the terms Term Facility or the Revolving Facility, as applicable, and any Eurodollar or ABR floor applicable to the Term Facility or the Revolving Facility, as applicable) relating to the Term Facility or the Revolving Facility, as applicable, immediately prior to the effectiveness of such Incremental Facility by more than 0.25%, the Applicable Margin (as calculated above) relating to the Term Facility or the Revolving Facility, as applicable, shall be adjusted to be equal to the Applicable Margin (as calculated above) relating to such Incremental Facility minus 0.25% (it being understood that differences in any Eurodollar or ABR floor, if required to be adjusted pursuant to the foregoing, shall be added to the Eurodollar or ABR floor to the extent required and not to the Applicable Margin). In the case of any Incremental Revolving Facility that increases the commitments under the Revolving Facility or any other existing Revolving Credit Facility except as revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably approved by 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) Any An Incremental Facility will shall be provided made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Any additional bank, financial institution, existing Lenders Lender or other Persons who become Lenders in connection therewith; provided Person that no elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender will or other Person being called an “Additional Lender”) and, if not already a Lender, shall (i) be subject to the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender and/or the Swingline Lender (to the extent such consent would be required with respect to an assignment to such Additional Lender pursuant to Section 10.6) and (ii) become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any portion Incremental Facility, unless it so agrees. Commitments in respect of any Incremental FacilityFacility shall become Commitments under this Agreement. Cadence shall have An Incremental Facility Amendment may, without the exclusive right consent of any other Lenders, effect such amendments to act any Loan Documents as arranger and bookrunner may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders). The effectiveness of any similar role) in connection with the Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and shall the Additional Lenders, be exclusively entitled subject to any underwritingthe satisfaction on the date thereof (each, arrangement or similar fees in connection therewith. 56 #96922345v9
(can “Incremental Facility Closing Date”) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders conditions set forth in such Letters Section 5.2. The proceeds of Credit any Incremental Facility will be automatically adjusted to reflect used only for general corporate purposes (including, for the Applicable Percentages avoidance of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facilitydoubt, Permitted Acquisitions and other Investments and Restricted Payments).
Appears in 1 contract
Incremental Facility. (a) On At any time after the Closing Date during the Commitment Period (in the case of a Revolving Commitment Increase) or before any time after the Closing Date and prior to the Term A Loan Maturity DateDate (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan), the Borrower will have the rightmay request (but subject, but not the obligationin each case, to increase the committed amount of conditions set forth in clause (b) below) (x) the Revolving Credit Facility Commitments be increased (or, solely in connection with a Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility (which may be an increase to the Term Facility) under this Agreement in an aggregate principal amount not to exceed $20,000,000, in the Available Incremental Amount (each case, by incurring incremental revolving credit commitments (eachsuch facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans, then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Facility:
(a) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(b) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent have signed an Incremental Joinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(c) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided that: (ifurther that the condition set forth in Section 5.2(e) all representations and warranties hereunder shall may be true and correct in all material respects after giving effect to satisfied, if agreed by the lenders providing such Incremental Facility (except in the case of any such representation and warranty which expressly relates to a given date or periodFacility, such representation and warranty shall be true and correct in all material respects so long as of the respective date or for the respective period, as the case may be) and no Default or Event of Default shall have pursuant to Section 8.1(a) or (f) has occurred and be continuing or is continuing;
(d) after giving pro forma effect thereto; (ii) to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with all covenantsthe then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in the case of a Revolving Commitment Increase, includingassuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period, without limitation, pro forma and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the Financial Covenants after giving effect to the Incremental Facility; requirements of this clause (iv) and clause (iii) above;
(e) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all other terms outstanding Loans, participations hereunder in Letters of the Incremental Facility Credit and participation hereunder in Swingline Loans held by each Lender shall be substantially identical reallocated among the Lenders (including any newly added Lenders) in accordance with the terms of the existing Lenders’ respective revised Revolving Credit Facility except as Percentages and L/C Percentages, pursuant to procedures reasonably approved determined by the Administrative Agent.;
(bf) Any any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(g) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date (but may be later), than the Term A Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the Term B Loan Maturity Date (in the case of an Incremental Term Facility that is an incremental Term B Loan) and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;then-existing Term A Loan (in the case of an Incremental Term Facility that is an incremental Term A Loan) or the then-existing Term B Loan (in the case of an Incremental Term Facility that is an incremental Term B Loan);
(h) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be provided guaranteed by existing Lenders any Person other than a Guarantor hereunder and shall not be secured by any property or assets other Persons who become Lenders than the Collateral;
(i) the all-in connection therewith; provided that no existing Lender will be obligated yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to provide any portion of any Incremental Facility. Cadence Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term(x) in the case of an Incremental Term Facility that is an incremental Term A Loan, the Term A Loans (measured based on the all-in yield with respect to the then-existing Term A Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term A Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term A Loans minus 0.50% or (y) in the case of an Incremental Term Facility that is an incremental Term B Loan, the Term B Loans (measured based on the all-in yield with respect to the then-existing Term B Loans) unless the Applicable Margin with respect to the then-existing Term B Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in yield applicable to the then-existing Term B Loans minus 0.50%; and
(j) the Borrower shall have the exclusive right to act as arranger paid all fees and bookrunner (including any similar role) expenses in connection with the exercise of the applicable Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9Facility.
(c) Upon the effectiveness of each any Incremental Facility, if there are Letters (i) in the case of Credit then outstandinga Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the participations Revolving Commitments shall be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in the case of an Incremental Term Facility that is secured on a junior basis in respect of the Revolving Credit Lenders in such Letters of Credit will Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted under the Loan Documents continue to be automatically adjusted to reflect perfected under the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) UCC or otherwise after giving effect to the applicable establishment of any such Incremental Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Term Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. (a) On So long as no Event of Default under subsection 8(a) or before the Maturity Date8(f) exists or would arise therefrom, the Borrower will shall have the right, but not at any time and from time to time after the obligationRestatement Effective Date, to increase the committed amount of the Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, in each case, by incurring incremental revolving credit commitments (each, an “Incremental Facility”); provided that: (i) all representations to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and warranties hereunder (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall be true not exceed, at the time the respective Incremental Commitment becomes effective (and correct in all material respects after giving effect to the Incremental Facility (except Incurrence of Indebtedness in connection therewith and the case application of proceeds of any such representation Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and warranty which expressly relates (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) 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 any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a given date supplement specifying the Tranche of Term Loans or periodrevolving commitments to be increased, such representation executed by the Borrower and warranty shall be true and correct each increasing Lender substantially in all material respects the form attached hereto as of Exhibit G (the respective date “Increase Supplement”) or for by each Additional Incremental Lender substantially in the respective periodform attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this subsection 2.5 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Default 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) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event of Default shall have occurred and are required to be continuing applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans (after giving effect theretoto any amendment in accordance with subsection 10.1(d)(v)); (ii) the Borrower shall no Lender will be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect required to the provide any such Incremental FacilityCommitment unless it so agrees; and (iii) all other terms the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Credit Facility except Initial Term Loans, as reasonably approved applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Administrative Agent.
(b) Any Incremental Facility will be provided by existing Lenders or other Persons who become Lenders Borrower in connection therewith; provided that no existing Lender will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwritinggood faith), arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Letters of Credit will would either be automatically adjusted converted into or required to reflect the Applicable Percentages of all the Revolving Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Facility) after giving effect to the applicable Incremental Facility.be exchanged for permanent financing which does not provide for an earlier maturity
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)