Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.
Appears in 3 contracts
Sources: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the Administrative Agent as provided below(or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Facility”) to (x) provide additional Term Loans or increase denominated, at the amount option of their Term Loans such Borrower, in Dollars, Euros and/or (y) establish any Alternative Currency, and consisting of one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more new tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”); provided that , or a combination thereof, so long as (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (or to the extent the proceeds of any Incremental Loans shall not exceed (Aare being used to finance a Permitted Acquisition or other permitted Investment, no Event of Default under Section 7.01(a), 7.01(b), 7.01(h) $400,000,000 (the “Incremental Starter Amount”or 7.01(i) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both has occurred and is continuing at the time of any execution of a binding agreement in respect of such request Acquisition or Investment and upon subject to customary “SunGard” limitations), and (ii) subject to the effectiveness provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the establishment of such Incremental Facility (or, at the option of the Borrower, (x) in the case of any Incremental Loan Amendment with respect Commitment established and not funded at such time, at the time of the initial funding of such Incremental Facility in lieu of the time at the time of such Incremental Facility Amendment) and/or (y) after giving effect to any acquisition or investment consummated or contemplated pursuant to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) agreement in connection herewith, the First Lien Indebtedness Leverage Ratio (determined computed on a pro forma basis as of the relevant determination date as if Pro Forma Basis (but without giving effect to any Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes established and/or funded at such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarterstime) shall not be greater than 3.50:1.00 (such indebtedness, “Incurrence Incremental First Lien Indebtedness”) (assuming, solely for purposes of this Section 2.20 at the time of entering into such Incremental Facility Amendment or funding of such Incremental Facility, as applicable, as elected by the Borrower, and not for any other provision hereunder, that (I) all Incremental Facilities and all Additional Term Notes, in each case established and/or issued on or prior to such time are secured on a first Lien basis, whether or not so secured, (II) all Incremental Revolving Facilities and Incremental Term Facilities consisting of delayed draw term loans established but not funded at such time are fully drawn and (III) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “First Lien Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect); provided further that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Effective Date not to exceed an amount equal to the sum of (x) 3.50 to 1.00 at any time during the period beginning Dollar Equivalent (calculated using the Exchange Rate on the Fifth Restatement date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $750,000,000 less any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(1) or in reliance on clause (x) of the definition of Unrestricted Incremental First Lien Indebtedness in the Miami Credit Agreement (provided that the maximum amount deducted pursuant to this clause (x) shall not exceed $750,000,000) plus (y) the amount of any voluntary prepayments (or repurchases) of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date and ending the amount of any voluntary prepayments (or repurchases) of the Miami Term Loans, First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on December 31a pari passu basis with the Liens securing the Obligations effected after the Effective Date (minus any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(2) or in reliance on clause (y) of the definition of “Unrestricted Incremental First Lien Indebtedness” in the Miami Credit Agreement) (other than, 2014 in each case, any such prepayments or repurchases financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) (such Indebtedness in clauses (x) and (y), collectively, the “Unrestricted Incremental First Lien Indebtedness”) 3.25 to 1.00 thereafter; (iiit being understood and agreed that unless notified by the Borrower (I) each Person which the Borrower shall request be deemed to make an have utilized amounts of the type described in clause (y) of the Unrestricted Incremental Loan First Lien Indebtedness prior to the utilization of amounts under clause (x) of the Unrestricted Incremental First Lien Indebtedness and Incurrence Incremental First Lien Indebtedness, and the Borrower shall be subject deemed to have used Incurrence Incremental First Lien Indebtedness, (to the extent compliant therewith) prior consent to utilization of amounts of the Administrative Agent type described in clause (x) of the Unrestricted Incremental First Lien Indebtedness (it being understood and agreed that amounts incurred concurrently with the incurrence of Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes shall be permitted to exceed 3.50:1.00), (II) Loans may be incurred in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, and the proceeds from any such consent not incurrence in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, may be utilized in a single transaction by first calculating the incurrence in respect of Incurrence Incremental First Lien Indebtedness above and then calculating the incurrence in respect of Unrestricted Incremental First Lien Indebtedness and (III) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness as Incurrence Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) in respect of Unrestricted Incremental First Lien Indebtedness. Each Incremental Facility shall be unreasonably withheld); in an integral multiple of $1,000,000 (iii) each tranche or, in the case of Incremental Loans shall Facilities denominated in Euros, €1,000,000) and be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (or, in the case of Incremental Facilities denominated in Euros, €25,000,000), provided that such amount may be less than $25,000,000 (or €25,000,000, as the case may be) if such lesser amount that represents all of the remaining availability under the limits aggregate principal amount of Incremental Facilities set forth in clause above.
(b) Each Incremental Term Facility (i) above)if made a part of an existing Class of Term Loans, shall have terms identical to those applicable to such Class of Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (ivA) except such Incremental Term Facility shall rank pari passu or junior in right of payment and/or security with the Term Loans hereunder or be unsecured, and if junior in right of payment and/or security or is unsecured, shall be established as a separate facility than the facility for Incremental the Term Loans requested under clause secured with the Collateral securing the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) if secured, the obligations in respect thereof shall not be secured by Liens on the assets of the Parent and the Restricted Subsidiaries, other than assets constituting Collateral, as applicable, and if established as a separate facility, shall be subject to (x) above if such Term Loans are secured on a pari passu basis with the Obligations, the Senior Representative for such Term Loans shall enter into the Pari Passu Intercreditor Agreement or other customary intercreditor agreement and (y) if such Term Loans are secured on a junior basis to the Obligations, the Senior Representative for such Term Loans shall enter into a Second Lien Intercreditor Agreement or other customary intercreditor agreement, in each case with the Administrative Agent’s and/or Collateral Agent substantially consistent with the terms set forth on Exhibit K-1 or K-2 annexed hereto together with (I) any immaterial changes and (II) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are Tranche A pari passu with, or junior in priority to, other Liens that are junior to the Liens securing the Obligations) (D) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Term Loans; provided that this clause (D) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Miami Additional Debt, Miami Additional Term Notes, Miami Unrestricted Additional Term Notes and Miami Incremental Term Loans having a final maturity date that is prior to the Incremental Loan Latest Maturity Date with respect to the Initial Term Loans so long as such final maturity date is at least five years from the date of the such issuance or incurrence, (E) no Incremental Loans of any Series Term Facility shall not be earlier have a Weighted Average Life to Maturity that is shorter than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of such Class of Term Loans); provided that this clause (E) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Miami Additional Debt, Miami Additional Term Notes, Miami Unrestricted Additional Term Notes and Miami Incremental Term Loans shall be greater having Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Tranche B Initial Term Loans (without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) so long as such debt does not require annual amortization or similar regularly scheduled prepayments in excess of 10% of the original amount of such debt at issuance or incurrence in any year, (F) for purposes of mandatory prepayments, shall be treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Initial Term Loans, (G) the pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that solely in the event that the Yield for any Incremental Term Loans secured on a pari passu basis with the Initial Term Loans (other than (i) Incremental Term Loans incurred in reliance on clause (y) of the definition of Unrestricted Incremental First Lien Indebtedness (except if the capacity under clause (y) results from prepayments made with the proceeds of indebtedness which is pari passu in right of payment and security with the Term Loans (other than the Revolving Loans)) and (ii) any Additional Term Notes) is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be entitled to participate, increased to the extent provided necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Loans minus 50 basis points, and (H) other terms may differ and shall be determined by the Borrower and the lenders providing such Incremental Term Loans; provided, however, the covenants and events of default of such Incremental Term Loans, if not consistent with the terms of the Initial Term Loans, shall not be materially more restrictive to the Borrower (as determined in Section 2.09(bgood faith by the Borrower), in mandatory prepaymentswhen taken as a whole, than the terms of the Initial Term Loans unless (x) the Lenders of the Initial Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility shall be subject to substantially the same terms as the Miami Initial Revolving Commitments (other than the identity of the borrowers thereunder and pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the fifth anniversary of the Effective Date.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (vany such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) except 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 otherwise appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) (and to the extent it directly and adversely affects the rights or duties of the Administrative Agent and/or the Collateral Agent, the Administrative Agent and/or the Collateral Agent, as applicable); provided that in Section 6.09(a)the event an Incremental Facility Amendment is effected without the consent of the Administrative Agent and to which the Administrative Agent is not a party, the Borrower shall within 30 days after the date furnish a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount copy of such Incremental Loans and the Person or Persons Facility Amendment to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewithAgent. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no No Lender shall be obligated to provide any Commitments under an Incremental LoansFacility, unless it so agrees. Any Person or Persons Commitments in respect of any Incremental Facilities shall become an Commitments under this Agreement. An Incremental Lender hereunder upon execution and delivery Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of an Incremental Loan Amendment this Section (in form reasonable satisfactory including to provide for voting provisions applicable to the Administrative AgentAdditional Lenders comparable to the provisions of clause (iv) by such Person or Persons, of the Borrower and the Administrative Agent; provided that the first proviso of Section 9.02(b)). The effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.any Incrementa
Appears in 3 contracts
Sources: Credit Agreement (Micro Focus International PLC), Credit Agreement (Seattle SpinCo, Inc.), Credit Agreement (Micro Focus International PLC)
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Sixth Restatement Effective DateDate (after having given effect to the Borrowing of the Incremental Tranche B-1 Term Loans thereon), by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) and any Guarantees incurred pursuant to Section 7.01(e)(ii)(A)(x) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 3.75 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter1.00; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Incremental Loans. The Any Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice from the Company to the Administrative Agent as provided belowand the Lenders, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)a) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, or additional Loans of the “Incremental Loans”); provided that (i) the aggregate amount same Class of Incremental Term Loans shall not exceed (A) $400,000,000 as an existing Class of Term Loans (the “Incremental Starter AmountTerm Loans”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(mor (b) plus one or more increases in the amount of the Revolving Credit Commitments (Ba “Revolving Commitment Increase”), provided that:
(i) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect referred to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) below, no Event of Default shall exist and at the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if time that any such Incremental Loans pursuant Term Loan is made (and after giving effect thereto) no Event of Default shall exist; provided that to the extent the proceeds of any such Incremental Term Loan are to be used to finance an Acquisition permitted hereunder, then this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersclause (i) shall not be greater than applicable so long as no Event of Default existed at the time the acquisition agreement relating to such Acquisition was entered into;
(ii) immediately after giving effect to the borrowing of such Incremental Term Loans or the establishment of such Revolving Commitment Increase (and (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 assuming all Revolving Commitment Increases were fully drawn and (y) 3.25 to 1.00 thereafter; (ii) each Person which excluding the Borrower shall request to make an Incremental Loan shall be subject to the prior consent cash proceeds of the Administrative Agent (such consent Incremental Term Loans and/or Revolving Commitment Increases from cash for purposes of calculating the Secured Debt Ratio), the Secured Debt Ratio would not exceed 4.50 to be unreasonably withheld); 1.00;
(iii) each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all 25,000,000 and shall be in an increment of the remaining availability under the limits set forth in clause (i) above); $1,000,000;
(iv) except for [Reserved];
(v) any Incremental Term Loans requested under clause (x1) above that are Tranche A shall not mature earlier than the Term Loans, the Incremental B Loan Maturity Date or, solely with respect to any Incremental Term Loans that the Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication thereof, shall not mature earlier than the Revolving Credit Termination Date, (2) shall not have scheduled amortization prior to the Term B Loan Maturity Date in excess of 1% per annum of the original principal amount or, solely with respect to any Incremental Term Loans that the Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication, shall not have scheduled amortization prior to final maturity in excess of 10% per annum of the original principal amount thereof, and (3) shall have the interest rates, upfront fees and OID for any Series of Incremental Term Loans as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; provided that, with respect to any Incremental Term Loans established within twelve months of the Restatement Effective Date, if the Effective Yield of such Incremental Term Loans exceeds the Effective Yield on the Term B Loans by more than 50 basis points, the Applicable Rates for the Term B Loans shall automatically be increased on the date such Incremental Term Loans are established to the extent necessary to cause the Effective Yield of the Term B Loans to be 50 basis points less than the Effective Yield of such Incremental Term Loans;
(vi) in no event shall the Incremental Term Loans of any Series be entitled to participate on a greater than pro rata basis with the Term B Loans then outstanding in any mandatory prepayment pursuant to this Agreement; and
(vii) the Incremental Term Loans shall not rank pari passu in right of payment and Collateral with the other Loans and shall have the same guarantees and Collateral as the other Loans and except to the extent contemplated above or as set forth in this Agreement, all other terms of any Incremental Term Loans shall either be earlier than substantially the Tranche same as the terms of the Term B Loans (including mandatory prepayment requirements) or shall be reasonably satisfactory to the Administrative Agent. Each notice from the Company pursuant to this Section 2.01(c) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan Maturity Date (except that the scheduled final maturity of such Loans or Revolving Commitment Increases. Incremental Term Loans may be accelerated pursuant made, and Revolving Commitment Increases may be provided, by any existing Lender (but no existing Lender will have any obligation to Section 2.08(b)make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase and no Borrower shall have any obligation to offer any Series of Incremental Term Loans or any Revolving Commitment Increase to existing Lenders) or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution being called an “Incremental Lender”), provided that the Administrative Agent and the Average Life Issuing Lender, as applicable, shall have consented (not to Maturity of the be unreasonably withheld, conditioned or delayed) to such Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Lender’s making such Incremental Term Loans (except that Incremental Loans shall be entitled to participate, or providing such Revolving Commitment Increases to the extent provided in any such consent would be required under Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any10.04(b) for such Incremental an assignment of Loans and (z) the Applicable Margin that will apply or Revolving Credit Commitments, as applicable, to such Incremental Lender. Incremental Term Loans and Revolving Commitment Increases shall be established pursuant to an amendment (if applicablean “Incremental Amendment”) to this Agreement and, as appropriate, the rate of the commitment feeother Loan Documents, if any, payable executed by the Company, any Subsidiary Borrower that will be a Borrower in respect of the commitment to make such Incremental Term Loans, together each Incremental Lender and the Administrative Agent. The Incremental Amendment may, without the consent of any other party, 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 to effect the provisions of this Section 2.01(c). In connection with any Incremental Amendment, the Obligors shall deliver such other information customary opinions and instruments as may be reasonably requested by the Administrative Agent in connection therewithfor purposes of ensuring the enforceability of the Loan Documents after giving effect to such Incremental Amendment. Amounts prepaid in respect Any Incremental Term Loans established pursuant to any Incremental Amendment shall constitute a separate “Series” of Incremental Term Loans may not hereunder. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.01, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be reborrowed. Notwithstanding anything herein deemed to have assigned to each Lender providing a portion of the contraryRevolving Commitment Increase (each, no a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, each Revolving Commitment Increase Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to purchase at par such portions of each other Revolving Credit Lender’s Revolving Credit Loans as the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided may specify so that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of Revolving Credit Loans are held by each of the conditions set forth Revolving Credit Lender (including each Revolving Commitment Increase Lender) on a pro rata basis in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementaccordance with their respective Applicable Percentages.
Appears in 3 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time after the Acquisition Date, request (x) Incremental Term Loan Commitments from one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount Lenders, all of their Term Loans and/or which must be Eligible Assignees and (y) establish Incremental Revolving Credit Commitments from one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”)Revolving Lenders; provided that (i) the aggregate amount of Incremental Term Loans and/or Incremental Revolving Credit Commitments so requested by the Borrower shall not exceed (Ai) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) Loans Amount plus (Bii) an additional amounts so long as both amount if, at the time of any (and after giving pro forma effect at such request time to) the incurrence of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and the application of proceeds therefrom, the Senior Secured Net Leverage Ratio is equal to or less than 3.75 to 1.00 (assuming all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were secured by the Borrower on a first lien basis, whether or not so secured, and all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were fully drawn on such date, whether or not so drawn). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Loan Lenders in connection therewith. The Borrower and each Incremental Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Loan Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to this Section 2.01(c)(i)(Bevidence such amendments (without the consent of any other Lender); provided that:
(i) the First Lien Indebtedness Ratio (determined on a pro forma basis Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the relevant determination date as if such Incremental Revolving Credit Commitments and Incremental Revolving Loans pursuant shall be identical to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during Revolving Credit Commitments and the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; Revolving Loans;
(ii) each Person the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except, in the case of Other Term Loans, as to maturity, interest rates, fees, amortization and call protection (which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and following clauses (v) through (z)) and except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable agreed by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that unless otherwise agreed by the effectiveness Required Lenders, (v) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (w) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, (x) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such Incremental Loan Amendment excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (y) the Other Term Loans shall benefit from the same Guarantees as those of the Term Loans and (z) the ranking of the Other Term Loans shall, as determined by the Borrower (1) rank pari passu or junior with the Credit Facilities in right of payment and (2) be unsecured or secured by the Collateral on a pari passu or junior basis with the Credit Facilities (and, to the extent subordinated in right of payment or security to the Credit Facilities, shall be subject to entry into a customary intercreditor arrangements in form and substance reasonably satisfactory to the satisfaction Administrative Agent and Borrower); and
(iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Credit Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrower shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), (w) the conditions set forth in this paragraphs (b) and (c) of Section 4.01 shall be satisfied, (x) Intermediate Holdings shall be in compliance, on a pro forma basis, with the financial covenant contained in Section 6.13 (assuming that the related Incremental Loans were drawn in full on such date and Sections 5.02 regardless of whether Intermediate Holdings is otherwise required to comply with such financial covenant at such time), (y) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the applicable Incremental Loan Commitments (assuming that the related Incremental Loans were drawn in full on such date) is permitted to be incurred pursuant to the terms of the Senior Notes and 5.03 any other material Indebtedness of Intermediate Holdings, the Borrower and the Subsidiaries then outstanding and (it being understood z) the Administrative Agent shall have received a certificate to the foregoing dated such date and executed by a Financial Officer of Intermediate Holdings and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Acquisition Date under Section 4.03.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all references Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to “be converted into an ABR Borrowing on the date of such Borrowing” each Incremental Loan, or similar language in Section 5.02 by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be deemed subject to refer Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the effective date extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Loan Amendment) and such other conditions as Term Loans shall be ratably increased by the parties to aggregate principal amount of such Incremental Loan Amendment Term Loans and shall agree. be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(e) The Incremental Loans made and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the same benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Amendment Assumption Agreement applicable thereto. The Loan Parties shall be deemed take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be a separate series (each a “Series”) perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans for all purposes of this Agreementor any such new Incremental Loan Commitments.
Appears in 3 contracts
Sources: Credit Agreement (ADS Waste Holdings, Inc.), Senior Secured Credit Agreement (Advanced Disposal Services Glacier Ridge Landfill, LLC), Senior Secured Credit Agreement (Trestle Transport, Inc.)
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant elect to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder increases in the Revolving Credit Commitments (collectivelyany such increase, the an “Incremental LoansLoan Commitment”) to make revolving credit loans (any such loan, an “Incremental Loan”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $150,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate a minimum principal amount that is not less than of $10,000,000 5,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by and shall be in integral multiples of $1,000,000 (or such Person or Persons, the Borrower and lesser amount that shall be reasonably satisfactory to the Administrative Agent) in excess thereof or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as is reasonably acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may, but is under no obligation to do so, invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the effectiveness Swingline Loan Lender and each Issuing Lender with an Issuing Lender L/C Sublimit equal to or in excess of $35,000,000 shall consent in writing to each Incremental Lender providing any portion of an Incremental Loan Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Amendment Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(a) no Event of Default shall exist on such Increased Amount Date before or after giving effect to any Incremental Loan Commitment; provided, for the avoidance of doubt, that any making of any Loan or any issuance, extension or increase with respect to any Letter of Credit in reliance on any Incremental Loan Commitment shall be subject to the satisfaction of each of the conditions set forth in Section 6.2 [Each Loan or Letter of Credit].
(b) Any proposed Incremental Lender shall join this Section Agreement as a Lender pursuant to a Lender Joinder Agreement;
(c) each Incremental Loan Commitment (and Sections 5.02 the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed secured and guaranteed with the other Obligations on a pari passu basis;
(i) such Incremental Loans shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to refer fees, in each case at the rate applicable to the effective date of such Incremental Loan Amendment) Revolving Credit Facility, and such other shall otherwise be subject to the same terms and conditions as the parties Revolving Credit Facility;
(ii) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and
(iii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(d) The Incremental Lenders shall be included in any determination of the Required Lenders.
(e) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementCommitment.
Appears in 3 contracts
Sources: Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp)
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the Administrative Agent as provided below(or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Credit Facility”) to denominated, in the case of any Incremental Term Facility, in Dollars or any Alternative Currency or, in the case of any Incremental Revolving Facility, at the option of the Borrower, in Dollars or, solely in the case of any Incremental Revolving Facility that is structured as an additional tranche of revolving commitments (xand not, for the avoidance of doubt, an increase in the Initial Revolving Commitments) provide additional Term Loans or increase the amount any Alternative Currency, and consisting of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”), or a combination thereof; provided that (i) immediately before and after giving effect to each Incremental Credit Facility Amendment and the applicable Incremental Credit Facility, no Event of Default has occurred and is continuing or would result therefrom (except in the case that the proceeds of any Incremental Credit Facility are being used to finance a Limited Condition Acquisition, in which case instead (x) no Event of Default shall exist or would result therefrom on the LCA Test Date and (y) no Event of Default under Section 7.01(a), 7.01(b), 7.01(h) or 7.01(i) shall have occurred and be continuing or would exist after giving effect thereto at the time such acquisition is consummated), (ii) subject to calculation adjustments set forth in Section 1.12 with respect to any Incremental Credit Facility being incurred in connection with a Limited Condition Acquisition, the aggregate principal amount of each Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both Credit Facility at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such time, and (iii) with respect to any secured Incremental Credit Facility (other than any Incremental Credit Facility (x) ranking junior in right of payment or with respect to security with the Obligations (including as a result of being “last out” in any waterfall), (y) incurred in connection with a Permitted Acquisition or other Investment permitted hereunder, or (z) any Specified Incremental Term Facility), in the event that the Yield for any Incremental Term Facility incurred in reliance on clause (a) of the definition of “Maximum Additional Debt Amount” and funded within twelve (12) months of the Closing Date is higher than the Yield for the outstanding Term Loans by more than seventy-five (75) basis points, then, except in the case of any such request Incremental Term Facility having an outside maturity date on or after the first anniversary of the Latest Maturity Date with respect to the Term Loans in effect at the time such Incremental Term Facility is incurred, the Applicable Margin for the outstanding Term Loans shall be increased to the extent necessary so that the Yield for such outstanding Term Loans is equal to the Yield for such Incremental Term Facility minus seventy-five (75) basis points (any such adjustment under clause (I), the “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of calculating the Yield for any Incremental Credit Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis, and upon the effectiveness Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with the Borrower (or, if the Administrative Agent declines (or is unable) to determine such Yield or the appropriate floating rate swap on a matched maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and the Borrower).
(b) Each Incremental Term Facility (i) if made a part of any existing tranche of Term Loans, shall have terms identical to those applicable to such Term Loans (other than with respect to fees and original issue discount payable at closing of such Incremental Term Facility) or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the case of this clause (ii), (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Initial Term Loans, (B) no Person is the borrower or a guarantor with respect to such Incremental Term Facility unless such Person is a Loan Amendment Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Term Loans, and with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as Term Facility ranking junior in respect of the relevant determination date as if Collateral with the Initial Term Loans or that is unsecured, no such Incremental Loans pursuant Term Facility shall mature on or prior to the date that is ninety-one (91) days after the then existing Latest Maturity Date with respect to the Term Loans; provided that restrictions in this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersclause (C) shall not apply to the extent such Incremental Term Facility constitutes (1) a customary bridge facility, so long as the long-term debt into which such customary bridge facility is to be greater than converted or exchanged satisfies the requirements of this clause (xC) 3.50 and such conversion or exchange is subject only to 1.00 at any time during the period beginning conditions customary for similar conversions or exchanges or (2) Subject Indebtedness incurred in reliance on the Fifth Restatement Effective Date and ending on December 31Maturity Limitation Excluded Amount, 2014 and (yD) 3.25 no Incremental Term Facility shall have a Weighted Average Life to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount Maturity that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier shorter than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Initial Term Loans), and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Initial Term Loans or that is unsecured, no such Incremental Term Facility shall be greater have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Tranche B then-remaining Initial Term Loans Loans, plus ninety-one (except 91) days; provided that Incremental Loans restrictions in this clause (D) shall be entitled to participate, not apply to the extent provided such Incremental Term Facility constitutes (1) a customary bridge facility, so long as the long-term debt into which such customary bridge facility is to be converted or exchanged satisfies the requirements of clause (C) above and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges or (2) Subject Indebtedness incurred in Section 2.09(breliance on the Maturity Limitation Excluded Amount, (E) for purposes of mandatory prepayments (not, for the avoidance of doubt, voluntary prepayments), such Incremental Term Facility shall be treated no more favorably than the Initial Term Loans except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, unless the Borrower and the lenders in mandatory prepayments); and respect of such Incremental Term Facility elect lesser payments, (vF) except as otherwise provided pursuant to this Section 2.20, any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders providing any such Incremental Term Facility; provided that the covenants and events of default applicable to such indebtedness, taken as a whole, shall either, at the option of the Borrower, (A) reflect market terms and conditions at the time of incurrence or effectiveness (as determined by the Borrower in good faith) or (B) be no more favorable in any material respect to the lenders providing such indebtedness than those of the Loan Documents (as reasonably determined by the Borrower and the Administrative Agent) (except for covenants or other provisions applicable only to the periods after the Latest Maturity Date at the time such Incremental Term Facility is incurred), unless such covenants and events of default are also added for the benefit of the Lenders under the Loan Documents, and (G) if an Incremental Credit Facility ranks junior in right of security or payment priority to the other Term Loans or is unsecured, such Incremental Credit Facility will be established as a separate facility from the then existing Term Loans and, if secured, shall be subject to the Second Lien Intercreditor Agreement.
(c) Each Incremental Revolving Facility (i) if made a part of an existing tranche of Revolving Commitments shall have terms identical to those applicable to such Class of Revolving Commitments (other than with respect to fees and original issue discount payable at closing of such Incremental Revolving Facility) or (ii) if consisting of an additional tranche of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that (A) no Incremental Revolving Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to the Revolving Commitments; provided that restrictions in this clause (A) shall not apply to the extent such Incremental Revolving Facility constitutes Subject Indebtedness incurred in reliance on the Maturity Limitation Excluded Amount, (B) the covenants, events of default and guarantees (other than maturity fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Revolving Facility, if not consistent with the terms of the Initial Revolving Facility, shall be no more favorable (as reasonably determined by the Borrower and the Administrative Agent) to the Lenders providing such Incremental Revolving Facility than the terms of the Initial Revolving Facility are to the Lenders, (C) the Incremental Revolving Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.09(a), 6.11 unless (x) the Initial Revolving Facility has the benefit of such financial maintenance covenant on the same terms or (y) such financial maintenance covenant only applies after the Latest Maturity Date with respect to the Initial Revolving Facility in effect as of the time such Incremental Revolving Facility is incurred and (D) no Person shall be the Borrower shall within 30 days after the date or a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied guarantor with respect to such TV/Radio SubsidiaryIncremental Revolving Facility unless such Person is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral.
(d) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Credit Facility. Such notice Any additional bank, financial institution, existing Lender or other Person that elects to provide commitments under an Incremental Credit Facility shall specify (w) be reasonably satisfactory to the amount Borrower and, in the case of any Incremental Revolving Facility and, to the extent such consent would be required for an assignment of such Incremental Loans and the Person or Persons Commitments pursuant to provide such Incremental LoansSection 9.04, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent and the Issuing Banks (such consents not to be unreasonably withheld, delayed or conditioned) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender and such Incremental Credit Facility is documented under this Agreement, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Credit Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Holding Companies, the Borrower, such Additional Lender (in connection therewiththe case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent and/or the Collateral Agent. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no No Lender shall be obligated to provide any Commitments under an Incremental LoansCredit Facility unless it so agrees. Any Person or Persons Commitments in respect of any Incremental Credit Facilities which are documented under this Agreement shall become an Commitments under this Agreement. An Incremental Lender hereunder upon execution and delivery Credit Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of an Incremental Loan Amendment this Section 2.20 (in form reasonable satisfactory including to provide for voting provisions applicable to the Administrative AgentAdditional Lenders comparable to the provisions of clause (B) by of the second proviso of Section 9.02(b) and to change the amortization schedule (but not decreasing the amortization payments required to be made to any Lender) or extending the call protection or other terms of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Person or Persons, the Borrower and the Administrative Agent; provided that the Term Loans). The effectiveness of such any Incremental Loan Credit Facility Amendment shall shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction of each (or waiver) on the date thereof (each, an “Incremental Facility Closing Date”) of the express conditions set forth in respect of such Incremental Credit Facility Amendment to be mutually agreed upon by the Additional Lenders and the Borrower customary for transactions of the type in respect of which the applicable Incremental Credit Facility relates. The proceeds of any Loans under an Incremental Credit Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including Restricted Payments, Acquisitions and other Investments). This Section 2.20 shall supersede any provisions in Section 2.11, Section 2.18 and Section 9.02 to the contrary.
(e) Upon each increase in the Revolving Commitments under any Revolving Credit Facility pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall without further act be deemed to refer have assigned to each Lender providing a portion of the effective date Incremental Revolving Commitments (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit under such Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit under such Revolving Credit Facility held by each Revolving Lender (including each such Incremental Revolving Lender), as applicable, will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders under such Revolving Credit Facility. Additionally, if any Revolving Loans are outstanding under a Revolving Credit Facility at the time any Incremental Revolving Commitments are established, the applicable Revolving Lenders immediately after effectiveness of such Incremental Loan Amendment) Revolving Commitments shall purchase and assign at par such other conditions amounts of the Revolving Loans outstanding under such Revolving Credit Facility at such time as the parties to Administrative Agent may require such Incremental Loan Amendment shall agree. The Incremental that each Revolving Lender holds its Applicable Percentage of all Revolving Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.outstanding under such Revolving Credit Facili
Appears in 3 contracts
Sources: First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.)
Incremental Loans. The Borrower may at At any time or from time to time after the Fifth Restatement Effective Date and prior to the Facility Termination Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Aggregate Commitment (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such increase, the an “Incremental LoansRevolving Credit Increase”); provided that (1) the total aggregate principal amount for all such increases during the term of this Agreement shall not exceed $1,000,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Increase shall be effective. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Incremental Revolving Credit Commitments shall become effective as of such Increased Amount Date; provided that:
(a) no Unmatured Default or Default shall exist on such Increased Amount Date;
(b) each of the representations and warranties contained in Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date);
(c) in the case of each Incremental Revolving Credit Increase:
(i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Revolving Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Pro Rata Shares of Swingline Loans and (z) the Applicable Margin that L/C Obligations will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Pro Rata Share (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 3.04 in connection therewith. Amounts prepaid with such reallocation as if such reallocation were a repayment); and
(ii) such Incremental Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement(s) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in respect the opinion of Incremental Loans may not be reborrowed. Notwithstanding anything herein the Administrative Agent, to effect the contrary, no provisions of this Section 2.22);
(d) No existing Lender shall be obligated to provide participate in any Incremental Loans. Any Person Revolving Credit Increase, and each Lender’s decision to provide (or Persons shall become not provide) an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (Revolving Credit Commitment in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment any instance shall be made in such Lender’s sole and absolute discretion in each case.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the satisfaction of foregoing terms and conditions, each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 Incremental Lender with an Incremental Revolving Credit Commitment shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be become a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementLender hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Salesforce, Inc.), Credit Agreement (SALESFORCE.COM, Inc.)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to make an incremental term loan (xany such incremental term loan, an “Incremental Term Loan”); or
(ii) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term increases in the Revolving Commitments, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental revolving credit loans hereunder (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loan, the “Incremental Loans”); provided that (i1) the total aggregate amount for all such Incremental Loan Commitments from and after the Second Amendment Effective Date shall not (as of any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not exceed be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (A1). Each such notice shall specify the date (each, an “Increased Amount Date”) $400,000,000 on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and the Issuing Lenders, to provide an Incremental Loan Commitment (each, an “Incremental Starter AmountLender”) less ). Any Lender or any Permitted Additional Indebtedness incurred pursuant Incremental Lender offered or approached to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness provide all or a portion of any Incremental Loan Amendment with respect Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. The Borrower’s ability to request an Incremental Loan pursuant Commitment shall not be affected by an election the Borrower may have otherwise made under Section 2.5 to this Section 2.01(c)(i)(Bvoluntarily reduce a portion of the Revolving Commitments. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the First Lien Indebtedness Ratio making of any Incremental Loans pursuant thereto and (determined 3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma basis as with the financial covenants set forth in Section 9.15 both before and after giving effect to (1) any Incremental Loan Commitment, (2) the making of the relevant determination date as if such any Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 thereto and (y3) 3.25 to 1.00 thereafter; any Permitted Acquisition consummated in connection therewith;
(iiC) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent proceeds of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of any Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for general corporate purposes of the remaining availability under Borrower and its Subsidiaries (including Acquisitions and Restricted Payments);
(D) each Incremental Loan Commitment (and the limits Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the case of each Incremental Term Loan (the terms of which shall be set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no relevant Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Joinder Agreement.):
Appears in 2 contracts
Sources: Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/)
Incremental Loans. The Borrower may In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a), (b) and (c) above, at any time or and from time to time after time, the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, Borrower may request that any one or more of the Lenders or, at the option of the Borrower, other financial institutions or funds selected by the Borrower offer to enter into commitments to make additional term Incremental Loans to the Borrower, in Dollars, under this paragraph (including Persons who d). In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Lenders pursuant Loans under this Agreement in an amount equal to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or respective Incremental Loan Commitments (y) establish one or more additional tranches of term loans hereunder (collectively, the and such financial institutions shall become “Incremental Loans”Lenders” hereunder); provided that . The Incremental Loans to be made pursuant to any such agreement between the Borrower and any such Lenders or financial institutions or funds in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loans Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall not exceed be (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus 20,000,000 or a larger multiple of $1,000,000 or (B) additional amounts so long as both at any other amount consented to by the time of any such request Administrative Agent and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents of all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date Commitments established after the date hereof plus the aggregate principal amount of all Revolving Credit Commitment Increases obtained after the date hereof shall not exceed $250,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation and other fees, commitment reduction schedule (if any), amortization and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Lenders of such Series, the Borrower and the Administrative Agent (which agreement by the Administrative Agent shall not be unreasonably withheld in the case of interest rates and participation and other fees), provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Loan, (ii) the maturity for Incremental Loans shall not be earlier than the Tranche B Term Loan Maturity Date (except that for Tranche B Term Loans and may be later than such Term Loan Maturity Date to the scheduled final maturity of extent so agreed by the Borrower and such Incremental Loans may be accelerated pursuant to Section 2.08(b)), Lenders and (iii) the Average Life to Maturity weighted average-life-to-maturity for such Series of the Incremental Loans shall not be greater shorter than the Average Life to Maturity of weighted average-life-to-maturity for the Tranche B Term Loans (except that Incremental and may be longer than the weighted average-life-to-maturity for the Tranche B Term Loans shall be entitled to participate, to the extent provided in Section 2.09(bso agreed by the Borrower and such Incremental Lenders. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (d), each Incremental Lender in mandatory prepayments); respect of such Series of Incremental Loans severally agrees, on the terms and (v) except as otherwise provided in Section 6.09(a)conditions of this Agreement, to make such Incremental Loans to the Borrower shall within 30 days after during the period from and including the date a Person becomes a TV/Radio Subsidiary cause of such acceptance to and including the Collateral and Guarantee Requirement to be satisfied commitment termination date specified in the agreement entered into with respect to such TV/Radio Subsidiary. Such notice shall specify (w) Series in an aggregate principal amount up to but not exceeding the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for Commitment of such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower Lender in respect of the commitment such Series as in effect from time to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewithtime. Amounts prepaid or repaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such increase, the an “Incremental LoansRevolving Credit Increase” or an “Incremental Loan”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $125,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans notice is delivered to Administrative Agent. The Borrower shall be madeinvite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any acquisition consummated in connection therewith;
(ii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such Person or Personsrepresentation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iii) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries;
(iv) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(v) each Incremental Loan Commitment (and the Administrative Agent; provided that Incremental Loans made thereunder) shall constitute Obligations of the effectiveness Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Loan Amendment Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the satisfaction of each of the conditions set forth in this Section same terms and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(2) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.11, without the consent of any other Lenders; and
(3) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Stewart Information Services Corp), Credit Agreement (Stewart Information Services Corp)
Incremental Loans. (a) The Borrower or the Company may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders new term loans, including delayed draw term loans (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)each, a “New Term Loan Commitment”) to (x) provide additional or increases of existing Term Loans or increase the amount of their (each, a “Supplemental Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyLoan Commitment”; together with any New Term Loan Commitments, the “Incremental LoansNew Loan Commitments”) hereunder, in an amount for any New Loan Commitments not in excess of, at the time such New Loan Commitments become effective (the “Increased Amount Date”), the Maximum Incremental Facilities Amount. Any existing Lender approached to provide all or a portion of such New Loan Commitments may elect or decline, in its sole discretion, to provide such New Loan Commitments.
(b) Such New Loan Commitments shall become effective as of such Increased Amount Date; provided that (ii)(1) each of the aggregate amount representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or “material adverse effect”), in each case on and as of Incremental Loans such Increased Amount Date as if made on and as of such Increased Amount Date except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties shall not exceed be true and correct in all material respects (A) $400,000,000 (the and in all respects if any such representation or warranty is already qualified by materiality or “Incremental Starter Amountmaterial adverse effect”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of such earlier date; provided further that, in the relevant determination date as if such Incremental Loans pursuant case of New Loan Commitments used to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date finance a Permitted Acquisition or other permitted Investment and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of extent the Administrative Agent (Lenders providing such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in New Loan Commitments agree, this clause (i) above); (iv) except for Incremental Loans requested under clause shall be subject only to, at the option of the Company, either (x) above that are Tranche A Term Loans, customary “specified representations” substantially consistent with the Incremental Loan Maturity Date definition of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), Specified Representations and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person customary “acquisition agreement representations” or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.customary European
Appears in 2 contracts
Sources: TLB Credit Agreement (Bending Spoons S.p.A.), TLB Credit Agreement (Bending Spoons S.p.A.)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowand the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, request one if it so agrees or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(cii) any other Person appointed by the Borrower after consultation with the Administrative Agent)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental LoansArranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount (in the case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available); provided that Incremental Loan Commitments may be incurred in the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders. Such notice shall set forth (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio Commitments being requested (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal minimum increments of, $1,000,000 and a minimum amount that is not less than of $10,000,000 5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, equal to the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of Amount at such Incremental Loans may be accelerated pursuant to Section 2.08(b)time), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (xi) the date on which such Incremental Loans Loan Commitments are requested to become effective (which shall not be made, less than five Business Days (y) or such shorter period as agreed by the Incremental Loan Maturity Date and Arranger) after the Incremental Loan Principal Payment Dates (if anydate of such notice) for such Incremental Loans and (zi) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of whether such Incremental Loan Amendment Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of each of the terms and conditions set forth in this Section 2.22 and Sections 5.02 and 5.03 in the applicable Incremental Loan Assumption Agreement, (it being understood that all references to “date 1) each Incremental Term Lender of such BorrowingClass shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (1) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (A) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” or similar language and collectively with any Incremental Term Loan, an “Incremental Loan”) in Section 5.02 an amount equal to its Incremental Revolving Credit Commitment of such Class and (1) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be deemed entitled to refer agree or decline to the effective date of such Incremental Loan Amendmentparticipate in its sole discretion) and such additional banks, financial institutions and other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.institutional lenders who will become
Appears in 2 contracts
Sources: Credit Agreement (Altice USA, Inc.), Credit Agreement (Altice USA, Inc.)
Incremental Loans. The Borrower may at any time or may, from time to time after time, on up to four (4) occasions during the Fifth Restatement Effective Dateterm of this Agreement, by written notice to Administrative Agent, elect to increase the Administrative Agent as provided below, request Revolving Commitments or enter into one or more tranches of incremental term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such other amount as may be acceptable to Issuing Bank, Administrative Agent and Borrower), so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $125,000,000. Any such election must be made by the Borrower during the period from the Effective Date to the date that is 30 days prior to the Revolving Termination Date (or such later date to which the Revolving Commitments have been extended pursuant to any Extension Permitted Amendment entered into in accordance with Section 2.18) in the case of any election to increase the Revolving Commitments, or the Term Loan Maturity Date (or such later date to which the maturity of the Term Loans has been extended pursuant to any Extension Permitted Amendment entered into in accordance with Section 2.18), in the case of any election to incur Incremental Term Loans. Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of Borrower, to arrange a syndicate of Lenders willing to increase their existing Revolving Commitments, or to participate in such Incremental Term Loans, or extend Revolving Commitments, as the case may be (including Persons who each existing Lender so agreeing to an increase in its Revolving Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender” and each new bank, financial institution or other entity, an “Augmenting Lender”). Each Increasing Lender and each Augmenting Lender increasing or extending a Revolving Commitment shall become be acceptable to Issuing Bank and Swingline Lender. No consent of any Lender (other than the Lenders participating in the increase or any Incremental Lenders Term Loan) shall be required for any increase in Revolving Commitments or Incremental Term Loan pursuant to this Section 2.01(c2.15. Increases and new Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.15 shall become effective on the date agreed by Borrower, Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and Administrative Agent shall notify each Lender thereof. Such Incremental Term Loans and increases in the Revolving Commitments shall be evidenced by the execution and delivery Borrower, Administrative Agent and Increasing Lender or Augmenting Lender (and, in the case of any increase or extension of a Revolving Commitment, Issuing Bank and Swingline Lender), as the case may be, of documentation acceptable to Administrative Agent. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender) to or tranche of Incremental Term Loans shall become effective under this Section 2.15 unless, (i) on the date of such effectiveness, (x) provide additional Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request (it being understood and agreed that the forms of certificates, documents and opinion letters delivered pursuant to Section 5.01(a)(ii) through (vi) shall be acceptable), (y)(A) the conditions set forth in Section 5.02(a) and (b) shall be satisfied and (B) after giving effect to the increase in the Revolving Commitments and the Incremental Term Loans or increase to be made on such date, the amount sum of their Term (1) Total Outstandings plus (2) Total Bridge Facility Outstandings shall not exceed the Borrowing Base, and (z) Borrower shall be in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to any Loans and/or to be made on such date and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) establish one and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 8.14) and executed by a Responsible Officer of Borrower, which certificate can be incorporated into and constitute a part of an Incremental Amendment executed by Borrower pursuant to this Section 2.15. On the Effective Date of any increase in the Revolving Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to Administrative Agent such amounts in immediately available funds as Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Revolving Commitment Percentage of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by Borrower, in accordance with the requirements of Section 2.01(a)). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification by Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loan Maturity Date (but may have amortization prior to such date) and (y) shall have the weighted average life to maturity no shorter than the weighted average life to maturity of the initial Term Loans, and (c) shall be treated substantially the same as (and in any event no more additional tranches of term loans hereunder (collectivelyfavorably than) the Revolving Loans and the initial Term Loans, the “Incremental Loans”)as applicable; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less terms and conditions applicable to any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of maturing after the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Term Loan Maturity Date and (ii) the Incremental Loan Principal Payment Dates (if any) for such Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Increases in Revolving Commitments and Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (zan “Incremental Amendment”) of this Agreement and, as appropriate, the Applicable Margin that will apply to other Loan Documents, executed by Borrower, each Increasing Lender participating in such Incremental Loans and (if applicable) the rate of the commitment feetranche, each Augmenting Lender participating in such tranche, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by , and, in the case of increases in Revolving Commitment, Issuing Bank and Swingline Lender. The Incremental Amendment may, without the consent of any other Lenders (except as expressly required pursuant to Section 11.01), effect such Person or Persons, the Borrower amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent; provided that , to effect the effectiveness provisions of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth this Section 2.15. Nothing contained in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” 2.15 shall constitute, or similar language in Section 5.02 shall otherwise be deemed to refer be, a commitment on the part of any Lender to the effective date of such increase its Revolving Commitment hereunder, or provide Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementTerm Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement (American Realty Capital Properties, Inc.), Credit Agreement (American Realty Capital Trust III, Inc.)
Incremental Loans. The Borrower may at any time or from time shall have the right to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder additional Loans (collectively, the “Incremental Loans”)) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided provided, however, that (i) the aggregate amount of such Incremental Loans shall not exceed Two Hundred Sixty Million Dollars (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any 260,000,000). Each such request and upon the effectiveness of any Incremental Loan Amendment must be an aggregate minimum amount of $20,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan pursuant Loan, and any new Lender becoming a party to this Section 2.01(c)(i)(B) Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to under this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be is subject to the prior consent of following conditions precedent: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheldwithheld or delayed); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans no Default or Event of Default shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to existence on the effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan AmendmentParty in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans and (B) all corporate or other conditions necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s ▇▇▇▇ Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the parties to such Incremental Loan Amendment shall agreeAdministrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes an amendment or restatement of this AgreementAgreement and, as appropriate, the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.3), 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, to effect the provisions of this Section 2.2.
Appears in 2 contracts
Sources: Unsecured Term Loan Agreement (First Industrial Lp), Unsecured Term Loan Agreement (First Industrial Lp)
Incremental Loans. The Any Borrower may at any time or from time to time after the Fifth Third Restatement Effective Date, by written notice from the Company to the Administrative Agent as provided belowand the Lenders, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)a) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, or additional Loans of the “Incremental Loans”); provided that (i) the aggregate amount same Class of Incremental Term Loans shall not exceed (A) $400,000,000 as an existing Class of Term Loans (the “Incremental Starter AmountTerm Loans”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(mor (b) plus one or more increases in the amount of the Revolving Credit Commitments (Ba “Revolving Commitment Increase”), provided that:
(i) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect referred to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) below, no Event of Default shall exist and at the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if time that any such Incremental Loans pursuant Term Loan is made (and after giving effect thereto) no Event of Default shall exist; provided that to the extent the proceeds of any such Incremental Term Loan are to be used to finance an Acquisition permitted hereunder, then this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersclause (i) shall not be greater than applicable so long as no Event of Default existed at the time the acquisition agreement relating to such Acquisition was entered into;
(ii) immediately after giving effect to the borrowing of such Incremental Term Loans or the establishment of such Revolving Commitment Increase (and (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 assuming all Revolving Commitment Increases were fully drawn and (y) 3.25 to 1.00 thereafter; (ii) each Person which excluding the Borrower shall request to make an cash proceeds of the Incremental Loan Term Loans and/or Revolving Commitment Increases from cash for purposes of calculating the Secured Debt Ratio), the Company shall be subject to in compliance with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); covenant set forth in Section 7.09;
(iii) each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all 25,000,000 and shall be in an increment of the remaining availability under the limits set forth in clause (i) above); $1,000,000;
(iv) except for [Reserved];
(v) any Incremental Term Loans requested under clause (x1) above that are Tranche A shall not mature earlier than the Term Loans, the Incremental B Loan Maturity Date of or, solely with respect to any Incremental Term Loans that the Incremental Loans of any Series Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication thereof, shall not be mature earlier than the Tranche B Term A Loan Maturity Date Date, (except 2) shall not have a Weighted Average Life to Maturity that is shorter than the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the then remaining Weighted Average Life to Maturity of then existing Term B Loans or, solely with respect to any Incremental Term Loans that the Incremental Loans Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication thereof, shall be greater not have a Weighted Average Life to Maturity that is shorter than the then remaining Weighted Average Life to Maturity of then existing Term A Loans and (3) shall have the Tranche B interest rates, upfront fees and OID for any Series of Incremental Term Loans (except that as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; provided that, with respect to any Incremental Term Loans established within twelve months of the Amendment No. 1 Effective Date, if the Effective Yield of such Incremental Term Loans exceeds the Effective Yield on the Term B Loans by more than 50 basis points, the Applicable Margins for the Term B Loans shall automatically be increased on the date such Incremental Term Loans are established to the extent necessary to cause the Effective Yield of the Term B Loans to be 50 basis points less than the Effective Yield of such Incremental Term Loans;
(vi) in no event shall the Incremental Term Loans of any Series be entitled to participate, participate on a greater than pro rata basis with the Term A Loans and the Term B Loans then outstanding in any mandatory prepayment pursuant to this Agreement; and
(vii) except to the extent provided contemplated above or as set forth in Section 2.09(b)this Agreement, in mandatory prepayments); and (v) except all other terms of any Incremental Term Loans shall either be substantially the same as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after terms of the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Term A Loans and the Person Term B Loans (including mandatory prepayment requirements) or Persons shall be reasonably satisfactory to provide such the Administrative Agent. Each notice from the Company pursuant to this Section 2.01(c) shall set forth the requested amount and proposed terms of the relevant Incremental Loans, (x) the date on which such Term Loans or Revolving Commitment Increases. Incremental Term Loans shall may be made, and Revolving Commitment Increases may be provided, by any existing Lender (ybut no existing Lender will have any obligation to make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase and no Borrower shall have any obligation to offer any Series of Incremental Term Loans or any Revolving Commitment Increase to existing Lenders) or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution being called an “Incremental Lender”), provided that the Incremental Loan Maturity Date Administrative Agent and the Incremental Loan Principal Payment Dates Issuing Lender, as applicable, shall have consented (if anynot to be unreasonably withheld, conditioned or delayed) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Incremental Lender. Incremental Term Loans and Revolving Commitment Increases shall be established pursuant to an amendment (if applicablean “Incremental Amendment”) to this Agreement and, as appropriate, the rate of the commitment feeother Loan Documents, if any, payable executed by the Company, any Subsidiary Borrower that will be a Borrower in respect of the commitment to make such Incremental Term Loans, together each Incremental Lender and the Administrative Agent. The Incremental Amendment may, without the consent of any other party, 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 to effect the provisions of this Section 2.01(c). In connection with any Incremental Amendment, the Obligors shall deliver such other information customary opinions and instruments as may be reasonably requested by the Administrative Agent in connection therewithfor purposes of ensuring the enforceability of the Loan Documents after giving effect to such Incremental Amendment. Amounts prepaid in respect Any Incremental Term Loans established pursuant to any Incremental Amendment shall constitute a separate “Series” of Incremental Term Loans may not hereunder. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.01, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be reborrowed. Notwithstanding anything herein deemed to have assigned to each Lender providing a portion of the contraryRevolving Commitment Increase (each, no a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, each Revolving Commitment Increase Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to purchase at par such portions of each other Revolving Credit Lender’s Revolving Credit Loans as the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided may specify so that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of Revolving Credit Loans are held by each of the conditions set forth Revolving Credit Lender (including each Revolving Commitment Increase Lender) on a pro rata basis in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementaccordance with their respective Applicable Percentages.
Appears in 2 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such loans, the an “Incremental LoansLoan”); provided that (i) the total aggregate principal amount of for all such Incremental Loans Revolving Credit Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $250,000,000 and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B(ii) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such total aggregate principal amount for each Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) Revolving Credit Commitment shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower proposes that any Incremental Revolving Credit Commitment shall request be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to make Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall be subject consent to the prior consent each Incremental Lender providing any portion of the Administrative Agent an Incremental Revolving Credit Commitment (such consent not to be unreasonably withheld, delayed or conditioned). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(iiia) (i) no Potential Default or Event of Default shall exist and be continuing on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto and (ii) as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 8.12, the Borrower would have been in compliance with the financial covenant specified in Section 9.4 [Maximum Consolidated Net Leverage Ratio] before or after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto;
(b) each tranche of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (unless qualified by materiality or reference to the absence of a Material Adverse Change, in which event shall be true and correct) as of such earlier date);
(c) the proceeds of any Incremental Loans shall be used in an aggregate principal amount that is not less than $10,000,000 accordance with Section 8.7 [Compliance With Laws; Use of Proceeds];
(or such lesser amount that represents all of the remaining availability under the limits set forth in clause d) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(ie) above); each Incremental Revolving Credit Commitment (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of and the Incremental Loans made thereunder) shall constitute Obligations of any Series shall not be earlier than the Tranche B Term Loan Maturity Date Borrower on a pari passu basis;
(except that the scheduled final maturity of f) such Incremental Loans may be accelerated pursuant to Section 2.08(b)), Revolving Credit Commitments and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity part of the Tranche B Term Loans Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees (except other than any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the Incremental Loans Lenders), in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(g) any Incremental Lender making any Incremental Revolving Credit Commitment shall be entitled to participate, the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the extent provided Incremental Revolving Credit Commitment to be terminated prior to termination of the existing Revolving Credit Commitments) each Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof);
(h) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Commitments) in Section 2.09(b), in mandatory prepayments); accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (vincluding the Incremental Lenders providing such Incremental Revolving Credit Commitments) except as otherwise provided in Section 6.09(a), agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall within 30 days after pay any and all costs required in connection with any prepayments and/or borrowings from all or certain of the date a Person becomes a TV/Radio Subsidiary Lenders required in connection therewith (including, without limitation, any amounts required pursuant to Section 5.10 [Indemnity]);
(i) Incremental Revolving Credit Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.11, without the consent of any other Lenders;
(j) the Borrower shall deliver or cause the Collateral and Guarantee Requirement to be satisfied delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the Borrower authorizing such Incremental Loans and/or Incremental Revolving Credit Commitments) reasonably requested by Administrative Agent in connection with any such transaction;
(k) the Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(l) on any Increased Amount Date on which any Incremental Revolving Credit Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Pure Storage, Inc.), Credit Agreement (Pure Storage, Inc.)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowand the Person appointed by the Borrower to arrange an Incremental FacilityLoan Commitments (such Person (who (i) may be the Administrative Agent, request one if it so agrees, or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(cii) any other Person appointed by the Borrower after consultation with the Administrative Agent)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount (in the case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available); provided that Incremental Loan Commitments may be incurred in the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (i) the aggregate amount Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender providing an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Credit Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (iii)(A) in the case of Incremental Term Loans, (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (B) in the case of Incremental Revolving Credit Commitments and Incremental Revolving Loans, (x) shall not exceed provide that the borrowing and repayment (except for (A) $400,000,000 payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (y) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date shall be made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) the final maturity date of any Other Loans that are Term Loans (the “Incremental Starter AmountOther Term Loans”) less shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Permitted Additional Indebtedness incurred Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Loan Maturity Date, (as defined in the Seventh Incremental Assumption and Refinancing Agreement), (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2016 Extended Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that the All-In Yield applicable to such Other Term Loans of the same currency as the 2016 Extended Term Loans (other than Other Term Loans (w) Incurred pursuant to Section 7.01(m4.04(b)(1)(ii) of Annex I, (x) established pursuant to the second proviso to Section 4.04(b)(1) of Annex I, (y) having a maturity date that is more than two years after the 2016 Extended Term Loan Maturity Date or (z) Incurred in connection with an acquisition) shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the 2016 Extended Term Loans plus 50 basis points per annum unless the interest rate (Btogether with, as provided in the proviso below, the Adjusted LIBO Rate floor) additional amounts with respect to such Loans is increased so long as both to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) above, and (E) the other terms and documentation in respect of such Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to the related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) applicable only to periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “Additional Covenants”) which may be added without the consent of any other party)), to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such other terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the time of any incurrence of such request Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each Lender and the Borrower as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment Assumption Agreement, (i) this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby including the Additional Covenants, and the (ii) each Incremental Loan Assumption Agreement may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the applicable Incremental Arranger and the Borrower may revise this Agreement to evidence such amendments, to effect the provisions of this Section 2.22, including to effect technical and corresponding amendments to this Agreement and the other Loan Documents and (iii) at the option of the Borrower in consultation with the applicable Incremental Arranger, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Class or Classes, in each case under this clause (ii), so long as the applicable Incremental Arranger reasonably agrees that such modification is favorable to the applicable Lenders. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.22 unless on the date of such effectiveness (or earlier, as determined in accordance with Section 1.05, in the case of an Incremental Loan Assumption Agreement the primary purpose of which is to finance a Limited Condition AcquisitionTransaction), (i)(x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date; provided that, with respect to an any Incremental Loan pursuant Assumption Agreement the primary purpose of which is to finance a Limited Condition Transaction, a Permitted Investment or an acquisition not prohibited by this Section 2.01(c)(i)(BAgreement, the condition set forth in this sub-clause (i)(x) shall only be required with respect to the making of the Major Representations (conformed as reasonably necessary for such Permitted Investment or such acquisition) and only to the extent requested by (and thereafterto the extent included (and in the form set forth in) the First Lien Indebtedness Ratio relevant Incremental Loan Assumption Agreement (determined on and, if included, may be waived by) Incremental Lenders holding more than 50% of the applicable aggregate Incremental Loan Commitments (provided, further, that, in the case of an acquisition or Permitted Investment with a purchase price in excess of 20% of L2QA Pro Forma EBITDA (after giving pro forma basis as of effect to such acquisition or Permitted Investment), the relevant determination date as if condition contained in this sub-clause (i)(x) with respect to Major Representations shall be required whether or not requested by such Incremental Loans pursuant to this Persons, unless waived in accordance with Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 9.08); and (y) 3.25 no Event of Default shall have occurred and be continuing; provided that (other than in the case of an Event of Default specified in Section 7.01(a) and (g)), the condition in this sub-clause (i)(y) may be waived by the majority of Incremental Lenders holding more than 50% of the applicable aggregate Incremental Loan Commitments, and the Administrative Agent shall have received a certificate to 1.00 thereafter; that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject all fees and expenses owing to the prior consent Administrative Agent, the Incremental Arranger and the Incremental Lenders in respect of the Administrative Agent (such consent not to be unreasonably withheld); increase shall have been paid (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of Arranger shall have received legal opinions addressed to the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date Lenders and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans Arranger, board resolutions and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information closing certificates reasonably requested by the Administrative Agent Incremental Arranger and consistent with those delivered on the Funding Date under Section 4.02, other than changes to such legal opinions resulting from a change in connection therewith. Amounts prepaid law, change in respect fact or change to counsel’s form of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable opinion reasonably satisfactory to the Administrative AgentIncremental Arranger and (iv) by the Incremental Arranger shall have received reaffirmation agreements and/or such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject amendments to the satisfaction of each of Security Documents as may be reasonably requested by the conditions set forth Incremental Arranger in this Section and Sections 5.02 and 5.03 (it being understood order to ensure that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.In
Appears in 2 contracts
Sources: Credit Agreement (Altice USA, Inc.), Credit Agreement (Altice USA, Inc.)
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request one that the Revolving Commitments be increased (the “Incremental Revolving Commitments”) or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish that that one or more additional tranches of term loans hereunder Term Loans (collectivelythe “Incremental Term Loans” and, together with the Incremental Revolving Commitments, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant be made available to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or to exceed, for all such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date Amount; provided that each such Incremental Loan may be provided by either a Lender or a non-Lender that is reasonably acceptable to the Administrative Agent (each such party providing an Incremental Revolving Commitment, an “Incremental Revolving Lender” and each such party providing an Incremental Term Commitment, an “Incremental Term Lender”). For the avoidance of doubt, no Lender shall have any obligation to make an Incremental Loan. Any such Incremental Loan shall be effective only upon the satisfaction or waiver of the Incremental Loans of any Series following conditions precedent:
(i) (A) no Default shall not have occurred and be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) continuing on the date on which such Incremental Loans Loan is to become effective or will result therefrom and (B) the representations and warranties in Article VI shall be made, true and correct in all material respects on and as of the date of the incurrence of such Incremental Loan;
(yii) the Borrower shall be in compliance with, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loan Maturity Date (and the Incremental Loan Principal Payment Dates (if any) for assuming all such Incremental Loans are fully draw) and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any acquisition, Disposition, prepayment of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent Indebtedness or Restricted Payment consummated in connection therewith. Amounts prepaid , a Consolidated Senior Leverage Ratio of not greater than the then applicable ratio set forth in respect Section 8.12(a);
(iii) each such Incremental Loan shall be in a minimum amount of $5,000,000 and shall be in increments of $1,000,000 for amounts in excess thereof;
(iv) (x) in the case of Incremental Loans may not be reborrowed. Notwithstanding anything herein to Revolving Loans, the contrary, no Borrower and each Incremental Revolving Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution execute and delivery deliver to the Administrative Agent an assumption and assignment agreement (an “Incremental Revolving Loan Assumption Agreement”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender and (y) in the case of Incremental Term Loans, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an assumption and assignment agreement (an “Incremental Term Loan Assumption Agreement” and together with the Incremental Revolving Loan Assumption Agreement, an “Incremental Loan Amendment Assumption Agreement”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Commitment of such Incremental Term Lender; and
(v) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Borrower and the Guarantors and opinions of outside legal counsel to the Borrower and the Guarantors) it may reasonably request relating to the corporate or other necessary authority for the applicable Incremental Loan Assumption Agreement and any other matters relevant thereto, all in form reasonable and substance reasonably satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Keyw Holding Corp), Credit Agreement (Keyw Holding Corp)
Incremental Loans. The Borrower may at (a) At any time or from time to time and after the Fifth Restatement First Amendment Effective Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments or Extended Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments incurred after the Closing Date shall not (as of any date of Incurrence thereof) exceed the greater of (x) the greater of (i) $150,000,000 and (ii) 25.0% of Consolidated EBITDA for the aggregate most recently ended Test Period and (y) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, the maximum amount of additional Indebtedness that would cause the Consolidated Total Secured Leverage Ratio as of the four consecutive Fiscal Quarter period most recently ended for which financial statements have been delivered pursuant to Section 8.1(a) or 8.1(b) prior to the proposed Increased Amount Date, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (and assuming any Incremental Loans shall Revolving Credit Increase is fully drawn), to not exceed 3.50:1.00 (A) $400,000,000 (such amount, the “Incremental Starter Facility Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(mand (2) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any total aggregate amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days 5 Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall be madehave received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully funded) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent any Permitted Acquisition consummated in connection therewith. Amounts prepaid ;
(C) subject to the Limited Condition Transaction Provisions in respect the case of a Limited Condition Transaction, each of the Specified Representations shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) each Incremental Loan Commitment (and the Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender made thereunder) shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent constitute Obligations of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(1) in the case of each Incremental Term Loan (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 2 contracts
Sources: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc)
Incremental Loans. The Borrower (a) At any time, the applicable Borrowers may at any time or from time to time after the Fifth Restatement Effective Date, by written notice from the Borrowing Agent to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to increase the maximum principal amount of revolving credit loans permitted hereunder (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of Five Million and 00/100 Dollars (x$5,000,000) 3.50 or, if less, the remaining amount permitted pursuant to 1.00 at any time during the period beginning foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an applicable Borrowers propose that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans notice is delivered to Administrative Agent. The Borrowers shall be madeinvite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by , to provide an Incremental Loan Commitment (any such Person or PersonsPerson, the Borrower and the Administrative Agentan “Incremental Lender”); provided that the effectiveness Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (including any existing Lender) providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Amendment Commitment. Any Incremental Loan Commitment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date become effective as of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Increased Amount Date; provided that:
Appears in 2 contracts
Sources: Credit Agreement (Mastech Digital, Inc.), Credit Agreement (Mastech Digital, Inc.)
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) Borrower may make up to five requests for an incremental term loan (the "Incremental Term Loan") or incremental revolving loan (the "Incremental Revolving Loan"), each such request being for at least $5,000,000, and in an aggregate amount not to exceed $40,000,000 for all such requests pursuant to delivery of Incremental Loans a written request from the Borrower to the Agent. Each such notice shall specify the date (an "Increase Effective Date") on which the Borrower proposes that the increased or new Commitments shall be effective, which date shall be a date not exceed less than ten (10) Business Days after such request is delivered to the Agent. The increased or new Commitments shall become effective on the applicable Increase Effective Date as long as each of the following conditions have been met:
(A) $400,000,000 (the “no Default or Event of Default has occurred or is continuing or would result after giving effect to such Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus Term Loan or Incremental Revolving Loan;
(B) additional amounts so long (1) the maturity date of any Incremental Term Loan, the weighted average life of any Incremental Term Loan, the effective yield to the Lenders under such Incremental Term Loan (including interest, fees received ratably by such Lenders and original issue discount) shall be the same as both the Initial Term Loan B, as applicable, at the time of any such request Incremental Term Loan is funded and upon the effectiveness of (2) any Incremental Revolving Loan Amendment shall become part of the Revolving Loans with respect the same maturity, interest, fees and terms as the Revolving Loans;
(C) the Borrower has provided evidence reasonably satisfactory to the Agent that the Borrower would have been in compliance with the financial covenants set forth in Section 6 assuming that the Incremental Term Loan or Incremental Revolving Loan, as applicable, had been incurred on the last day of the then most recently completed Fiscal Quarter; and
(D) the Agent shall have received amendments to this Agreement and the Loan Documents, joinder agreements for any new Lenders, and all other promissory notes, agreements, documents and instruments reasonably satisfactory to the Agent in its reasonable discretion evidencing and setting forth the conditions of the Incremental Term Loan or Incremental Revolving Loan, as applicable.
(ii) Each Lender which (a) holds a Term Loan B on the date the Borrower delivers a written request to the Agent for a Incremental Term Loan or a Revolving Loan on the date the Borrower delivers a written request to the Agent for an Incremental Revolving Loan pursuant and (b) notifies the Agent in writing within five (5) days of receipt of written notice from the Agent that Borrower has requested an Incremental Term Loan or Incremental Revolving Loan, as applicable, shall have the right to this Section 2.01(c)(i)(B) fund its pro rata share of the First Lien Indebtedness Ratio (determined on a pro forma basis Incremental Term Loan or Incremental Revolving Loan, as applicable, based upon its share of the Term Loan B Commitment or the Revolving Loan Commitment, as applicable, as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during Agent originally received the period beginning on applicable notice from the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowedBorrower. Notwithstanding anything contained herein or otherwise to the contrary, no Lender shall be obligated have any obligation to provide fund all or any Incremental Loans. Any Person portion of, or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Personsparticipate in, the Borrower and Incremental Term Loan or the Administrative Agent; provided that Incremental Revolving Loan. Amounts of the effectiveness of such Incremental Term Loan Amendment shall which are repaid may not be reborrowed.
(iii) On any Increase Effective Date on which Incremental Revolving Loans are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Lenders with Revolving Loan Commitments shall assign to each Lender with an Incremental Revolving Loan (each, an "Incremental Revolving Loan Lender") and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Loan Commitments, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Loan and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the addition of such Incremental Revolving Loans to the Revolving Loan Commitments, (B) each Incremental Revolving Loan shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (C) each Incremental Revolving Loan Lender shall become a Lender with respect to the Revolving Loan Commitment and all matters relating thereto.
(iv) On any Increase Effective Date on which Incremental Term Loans are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each Lender with an Incremental Term Loan (each, an "Incremental Term Loan Lender") shall make a Loan to the Borrower in an amount equal to the amount of the Incremental Term Loan such Lender has committed to fund and (B) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan. Amounts of the Incremental Term Loan repaid may not be reborrowed.
(v) Each of the Borrower, Lenders and Agent acknowledges and agrees that an Incremental Term Loan or Incremental Revolving Loan (and related amendments and documents described in clause (iv) above) meeting the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references 1.1(g) shall not require the consent of any Lender other than those Lenders, if any, which have agreed to “date of such Borrowing” participate in the Incremental Term Loan or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions Revolving Loan, as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementapplicable."
Appears in 2 contracts
Sources: Credit Agreement (RadNet, Inc.), Credit Agreement (RadNet, Inc.)
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Effective Date(a) Metals USA may, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Commitments in an amount not to exceed the Incremental Amount (and, with respect to any Incremental Tranche A-1 Commitments, also not to exceed the Incremental Tranche A-1 Amount) from one or more Lenders Persons (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyeach, the an “Incremental LoansLender”), which may include any existing Lender; provided that (i) the aggregate amount of each Incremental Loans shall Lender, if not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on already a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31Lender hereunder, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent approval of the Administrative Agent Agent, the Letter of Credit Issuers and the Swingline Lender (such consent which approvals shall not to be unreasonably withheldwithheld or delayed); , (ii) that the upfront fees for any such Incremental Commitments may be less than or exceed the upfront fees for the Commitments outstanding prior to effectiveness of such Incremental Commitments and in no event shall the upfront fees for such Commitments be adjusted to equal the fees for such Incremental Commitments and (iii) each tranche of with respect to any Incremental Loans Tranche A-1 Commitments, the Applicable Margins for such Tranche A-1 Commitments may be less than or exceed the Applicable Margins for the Tranche A Commitments or other Tranche A-1 Commitments, as agreed upon among the Administrative Agent, the Borrowers and the Tranche A-1 Lenders at the time such Incremental Tranche A-1 Commitments become effective, and in no event shall the Applicable Margins for the Tranche A Commitments or other Tranche A-1 Commitments be adjusted to equal the Applicable Margins for such Incremental Tranche A-1 Commitments. Such notice shall set forth (i) whether Incremental Tranche A Commitments or Incremental Tranche A-1 Commitments are being requested and the amount thereof being requested (which shall be in an aggregate principal minimum increments of $1,000,000 and a minimum amount that is not less than of $10,000,000 (5,000,000 or such lesser amount that represents all of equal to the remaining availability under Incremental Amount (not to exceed the limits set forth remaining Incremental Tranche A-1 Amount in clause (i) above); (iv) except for the case of Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(bA-1 Commitments)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (xii) the date on which such Incremental Loans shall be made, Commitments are requested to become effective and (yiii) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) Commitments are Tranche A-1 Commitments, the Applicable Margin that will apply applicable thereto.
(b) The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loans and (if applicable) Commitment of each Incremental Lender. The Administrative Agent shall promptly notify each Lender as to the rate effectiveness of each Incremental Assumption Agreement. Each of the commitment feeparties hereto hereby agrees that, if anyupon the effectiveness of any Incremental Assumption Agreement, payable this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence of the Incremental Commitments evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.5 unless (i) on the date of such effectiveness, the conditions set forth in Section 10.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and signed by a Responsible Officer of each Borrower, (ii) all fees and expenses owing to the Borrower Administrative Agent or any Lender in respect of the commitment to make such Incremental LoansCommitment shall have been paid and (iii) except as otherwise specified in the applicable Incremental Assumption Agreement, together the Administrative Agent shall have received (with such sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other information closing certificates reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect and consistent with those delivered on the Closing Date under Section 10.1.
(d) Upon the effectiveness of an Incremental Loans may not be reborrowed. Notwithstanding anything herein to Assumption Agreement, the contrary, no Lender Commitments shall be obligated to provide any increased by the aggregate amount of the Incremental LoansCommitments evidenced thereby, which shall, thereafter, constitute Commitments for all purposes of this Agreement and the other Loan Documents. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with Metals USA, take any and all action as may be reasonably necessary to ensure that the Revolving Loans of an each Class outstanding on the effective date of any Incremental Loan Amendment (Assumption Agreement are held by the Lenders in form reasonable satisfactory that Class in accordance with their respective Tranche A Pro Rata Shares or Tranche A-1 Pro Rata Shares, as the case may be, after giving effect to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Assumption Agreement. This may be accomplished by requiring each outstanding LIBOR Rate Revolving Loan Amendment shall to be converted into or prepaid with the proceeds of Base Rate Revolving Loans, subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” 5.4 but otherwise without premium or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementpenalty.
Appears in 2 contracts
Sources: Loan and Security Agreement (FLAG INTERMEDIATE HOLDINGS Corp), Loan and Security Agreement (Metals Usa Holdings Corp.)
Incremental Loans. The Borrower may at (a) At any time or from time commencing on the Effective Date until the date that is one year prior to time after the Fifth Restatement Effective Maturity Date, by provided no Default or Event of Default has occurred and is continuing and subject to the conditions set forth in clause (d) below, upon written notice to the Administrative Agent as provided below(each, an “Incremental Request Notice”), the Borrower may, from time to time, request one or more Lenders increases (including Persons who but no more than two increases in the aggregate) to the Commitments to fund additional Loans (each, an “Incremental Loan”) in an aggregate amount not to exceed $70,000,000; provided that the proceeds of such Incremental Loans shall become be used to refinance the First Lien Obligations. Any Incremental Lenders Loan shall be in the amount of at least $10,000,000 (or such lower amount that represents all remaining availability pursuant to this Section 2.01(c2.22(a)) and integral multiples of $1,000,000 in excess thereof (or such lower amount that represents all remaining availability pursuant to this Section 2.22(a)).
(b) The Incremental Request Notice shall specify the time period (such period, the “Election Period”) within which the Lenders of record at such time are requested to respond (which Election Period shall in no event be less than ten (10) Business Days from the date of delivery of such notice) and the terms of the requested Incremental Loans (which terms shall include, without limitation, (A) the proposed loan amount, (B) the interest rate, (C) the term of the loan, including any extension options, (D) a description of any guaranties or other credit enhancements to be provided, and (E) any fees), and the Administrative Agent shall promptly notify such Lenders of the Borrower’s request for such Incremental Loan and the Election Period during which the Lenders are requested to respond to the Incremental Request Notice; provided that if such Incremental Request Notice is conditioned upon the occurrence of a specified event, such Incremental Request Notice may be revoked if such event does not occur prior to the requested funding date. No Lender shall be obligated to increase its Commitment or to participate in any Incremental Loan and each Lender’s determination to increase its Commitment or to participate in any Incremental Loan shall be in such Lender’s sole and absolute discretion. To the extent any Lender has not responded by the end of such Election Period, such Lender shall be deemed to have declined to increase its Commitment. If a Lender elects to increase its Commitment, such Lender may select any of its Controlled Investment Affiliates to provide all or a portion of such Commitments or Incremental Loans. To the extent any Lender does not agree to provide an Incremental Loan on terms set forth in the Borrower’s Incremental Request Notice, the Borrower may invite (x) provide additional Term Loans any other existing Lender or increase the amount of their Term Loans and/or (y) establish one any prospective lender that satisfies the criteria set forth in Section 9.04(b) and is reasonably satisfactory to the Administrative Agent to provide such Incremental Loans on the same terms offered to such Lender and to become a Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent in connection with the proposed Incremental Loan (provided that the joinder of any such “Lender” for the purpose of providing all or more additional tranches any portion of term loans hereunder any such Incremental Loan shall not require the consent of any other Lender (collectivelyincluding any other “Lender” that is joining this Agreement to provide all or part of such Incremental Loan)); provided further that, prior to incurring any Incremental Loans from any such prospective lender, the Lenders shall be provided with an opportunity to fund all or a portion of such Incremental Loans on the same terms offered to the prospective lender. For the avoidance of doubt, no Incremental Loan may be incurred without first delivering an Incremental Request Notice to the Lenders of record at such time to provide such Incremental Loan as provided above.
(c) If the Commitments are increased in accordance with this Section 2.22, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Incremental Loan. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such Incremental Loan and the Increase Effective Date.
(d) Each of the following shall be the only conditions precedent to the making of an Incremental Loan:
(i) The Borrower, the Administrative Agent and each Lender providing an Incremental Loan shall enter into an amendment to effectuate the provisions of this Section 2.22, including without limitation, to ensure and demonstrate that the Liens and security interests granted by the Loan Documents are perfected under the UCC or other applicable law to secure the Obligations in respect of the Incremental Loan (the “Incremental LoansAmendment”);
(ii) The Borrower shall deliver to the Administrative Agent (i) a certificate of each Loan Party, dated the Effective Date and executed by its Director, Secretary or Assistant Secretary, which shall (A) certify the resolutions of its board of directors, managers, members or other body approving or consenting to the Incremental Loans, (B) identify by name and title and bear the signatures of the officers of such Loan Party authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) attach the charter, articles or certificate of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, or contain a certification that such organizational or governing documents have not changed since they were previously delivered to the Administrative Agent and (ii) a good standing certificate for each Loan Party (except for the Australian Loan Parties) from its jurisdiction of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party.
(iii) Each of the conditions precedent set forth in Section 4.02 shall be satisfied.
(iv) The Borrower shall have delivered to the Administrative Agent a certificate certifying as to compliance with the requirements of clause (iii) above.
(v) The Borrower shall deliver to any Lender providing an increase in the Commitments hereunder (or any new Lender providing such Incremental Loan hereunder) any Notes requested by such Lender in connection with the making of such increased or new Commitment.
(vi) The Administrative Agent and the Lenders shall have received a legal opinion, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, with respect to the transactions contemplated by this Section 2.22 as the Administrative Agent and the Lenders may reasonably require.
(vii) The Borrower shall have paid to the Administrative Agent any fees required to be paid pursuant to the terms of this Agreement or the Agent Fee Letter, and shall have paid to the Lenders any fees required to be paid hereunder and otherwise in connection with the increased Commitment.
(e) This Section shall supersede any provisions in Section 2.18 or 9.02 to the contrary.
(f) Any Incremental Loans shall, for purposes of any repayment or prepayment of principal or interest, be treated substantially the same as the then existing Loans, and made pursuant to the same documentation as the Loans.
(g) The Incremental Loans shall have the terms set forth in the applicable Incremental Request Notice; provided that (i) to the extent the All-in-Yield applicable to the Incremental Loan is higher than the All-in-Yield applicable to the then existing Loans (without giving effect to any Default Rate) by more than 0.50%, this Agreement shall be amended to increase the interest rate applicable to the then existing Loans to the extent necessary so that the All-in-Yield on such Incremental Loan is no more than 0.50% greater than the All-in-Yield on the then existing Loans and (ii) the terms of any Incremental Request Notice which is provided pursuant to Section 6.01(t) shall satisfy the applicable requirements set forth in the definition of “Refinancing Indebtedness”.
(h) Upon the increase in Commitments under this Section 2.22, all references in this Agreement and in any other Loan Documents (x) to the Commitment of any Lender shall be deemed to include any increase in such Lenders’ Commitment pursuant to this Section 2.22 and (y) to the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan Commitments made pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term 2.22. The Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity aggregate amount of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except Commitments that Incremental Loans are increased under this Section 2.22 shall be entitled to participate, to all of the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans benefits afforded by this Agreement and the Person or Persons to provide such Incremental Loans, (x) other Loan Documents and shall benefit equally and ratably from any guarantees and Liens provided under the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate Documents in favor of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementSecured Parties.
Appears in 2 contracts
Sources: Subordinated Credit Agreement (F45 Training Holdings Inc.), Subordinated Credit Agreement (F45 Training Holdings Inc.)
Incremental Loans. The (a) At any time prior to the date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental Revolving Credit Commitments (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the “Incremental New Loans”); provided that (i1) the total aggregate amount of Incremental Loans for all such New Loan Revolving Credit Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $150,000,000 and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B(2) the First Lien Indebtedness Ratio total aggregate amount for each New Loan Revolving Credit Commitment (determined on a pro forma basis as of and the relevant determination date as if such Incremental New Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any New Loan Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such New Loan Revolving Credit Commitment. Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any New Loan Revolving Credit Commitment, and (2) the making of any New Loans pursuant thereto;
(B) [Intentionally Omitted];
(C) the proceeds of any New Loans shall be used for the purposes permitted by Section 9.13(b);
(D) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(E) (x) 3.50 to 1.00 at any time during the period beginning on terms of each New Loan shall be set forth the Fifth Restatement Effective Date and ending on December 31relevant Joinder Agreement;
(i) [intentionally omitted], 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower Applicable Margin and pricing grid, if applicable, for such New Loans shall request be determined on the applicable Increased Amount Date; provided that if such Applicable Margin would exceed the current Applicable Margin for the existing Revolving Credit Loans, the Applicable Margin for the existing Revolving Credit Loans shall be automatically increased to make an Incremental Loan equal the Applicable Margin for the New Loans and (iii) such New Loans shall be subject to the prior consent of same terms and conditions as the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Revolving Credit Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Revolving Credit Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative AgentDate); provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.and
Appears in 2 contracts
Sources: Credit Agreement (Amerigas Partners Lp), Credit Agreement (Amerigas Partners Lp)
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Effective Closing Date, the Borrower may by written notice to the Administrative Agent as provided belowelect to request (A) prior to the Revolving Termination Date, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase increases in the amount of their Term Loans and/or Revolving Commitments (ya “Revolving Facility Increase”), (B) establish the establishment of one or more additional tranches new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans hereunder (collectivelycollectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental LoansCommitments”); provided that (i) the aggregate amount of . Each Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (or such lesser x) together with the aggregate principal amount that represents all of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the remaining availability Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the limits Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in clause Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iz) above)Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (iv2) except for the Incremental Loans requested under clause Commitments will share in the Collateral on a pari passu basis; (x3) above that are Tranche A Term Loansthe Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Loan Maturity Date Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans of any Series Loans); and (5) the Borrower shall not pay, or cause to be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity paid, all fees and expenses owing in respect of such Incremental Loans may to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be accelerated pursuant necessary in order that, after giving effect to Section 2.08(b)all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto.
(c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans.
(d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25.
(e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event:
(i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the Incremental then outstanding Term Loans on the date of incurrence of such New Term Loans;
(ii) (A) the final maturity date of any tranche of the New Term Loans shall be greater no earlier than the Average Life to original Term Maturity Date and (B) the final maturity date of any tranche of the Tranche B Term Loans (except that Incremental New Revolving Credit Loans shall be entitled to participateno earlier than the original Revolving Maturity Date;
(iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the extent provided in Section 2.09(b), in mandatory prepayments); same documentation as the Term Loans increased thereby and (vB) except in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Revolving Loans and the Person Revolving Commitments, as applicable; or Persons to provide in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans, ;
(xiv) all other material terms of the date on which such Incremental New Revolving Credit Commitments and New Revolving Credit Loans shall be madeidentical to the Revolving Commitments, (y) on the Incremental Loan Increased Amount Date, other than the Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 5.02 2.03(n) and 5.03 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (it being understood that all references to “date of such Borrowing” or similar language and except as provided in Section 5.02 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates;
(v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement;
(vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to refer constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective date subsequent to the Closing Date but prior to the time of such Incremental New Term Loan Amendmentshall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) and in respect of such other conditions as New Term Loan includes an interest rate floor greater than the parties interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility 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 such Term Facility shall be increased by such increased amount;
(vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans.
(f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Amendment 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 2.25, and for the avoidance of doubt, this Section 2.25 shall agree. supersede any provisions in Section 10.7 or 10.1 to the contrary.
(g) The Incremental Loans made and Commitments extended or established pursuant to the same Incremental Loan Amendment this paragraph shall be deemed to be a separate series (each a “Series”) of Incremental constitute Loans for all purposes of this Agreement.and Commitments under, and shall
Appears in 2 contracts
Sources: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (xi) provide additional increase the outstanding principal amount of the outstanding Term Loans or increase the amount of their Term Loans and/or (yii) establish one or more additional term loan tranches of (any such increase or additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans hereunder under the Revolving Credit Facility (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed the Incremental Cap and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to the prior consent Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person approved by the Administrative Agent (such consent approval not to be unreasonably withheld, conditioned or delayed), to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall each approve each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment (iii) each tranche such approval not to be unreasonably withheld, conditioned or delayed). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. No Loan or Commitment of any Lender shall be increased without the consent of such Lender, and none of the Lead Arrangers and/or their Affiliates shall have any obligation to arrange any Incremental Loans without its prior written agreement. Any Incremental Loan Commitment shall be become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in an aggregate principal amount connection therewith; provided that in connection with a requested borrowing of any Incremental Term Loan for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is not less than $10,000,000 (or such lesser amount that represents all a Limited Condition Transaction, the condition of the remaining availability under the limits set forth in this clause (i) above); (iv) except for Incremental Loans requested under clause shall be (x) above that are Tranche A Term Loansno Potential Default or Event of Default exists or would exist at the time a binding purchase agreement for such transaction is entered into by the applicable Loan Party and (y) the absence of a Specified Event of Default at the time of and after giving effect to the consummation of such Limited Condition Transaction;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except Administrative Agent, that the scheduled final maturity of such Incremental Loans may be accelerated Borrower is in compliance with the financial covenants specified in Sections 9.12 and 9.13, in each case based on the financial statements most recently delivered pursuant to Section 2.08(b)8.11(a) or 8.11(b), as applicable, both before and the Average Life after giving effect (on a Pro Forma Basis) to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such any Incremental Loans shall be madeLoan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date (regardless of whether the Incremental Loan Commitments, as applicable, are actually drawn on the Increased Amount Date) with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that in connection with a requested borrowing of any Incremental Term Loan for the sole express purpose of financing in whole or in part the purchase price for a Limited Condition Transaction, (i) such representations and warranties shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects) on and as of the date of effectiveness of the definitive purchase agreement for such Limited Condition Transaction and (ii) the representations and warranties required to be correct and accurate at the time of the closing of such Limited Condition Transaction and funding of any applicable Incremental Term Loan will be limited to the Specified Representations;
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(v) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the initial Term Loans or a maturity date earlier than the Term Loan Maturity Date;
(II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that will apply no such agreement shall allow the Incremental Term Loans to be prepaid prior to the initial Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the initial Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.17, be identical to the terms and conditions applicable to the initial Term Loans;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility (other than with respect to the payment of any upfront and/or arrangement fees in connection with the establishment thereof);
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Swingline Loans and Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required).
(3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.17, without the consent of any other Lenders; and
(4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection therewith. Amounts prepaid with any such transaction.
(c) The Incremental Lenders shall be included in respect any determination of the Required Lenders and, unless otherwise agreed, the Incremental Loans may Lenders will not be reborrowed. Notwithstanding anything herein constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the contraryforegoing terms and conditions, no each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to provide make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsRevolving Credit Increase becomes effective, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
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Sources: Credit Agreement (Cadre Holdings, Inc.), Credit Agreement (Cadre Holdings, Inc.)
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Effective Closing Date, the US Borrower may by written notice to the Administrative Agent as provided below, (which shall promptly deliver such notice to each Lender) elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of incremental term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $200,000,000 and (2) the total aggregate amount of for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $50,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the US Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The US Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from Holdings and the US Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Consolidated Total Leverage Ratio will be madeat least 0.25 to 1.00 less than the maximum Consolidated Total Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 10.13(a) and (2) the Credit Parties are in compliance with the financial covenants set forth in Section 10.13, in each case based on the financial statements most recently delivered pursuant to Section 9.1(a) or 9.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully funded) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent any Permitted Acquisition consummated in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment ;
(in form reasonable satisfactory to the Administrative AgentC) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions representations and warranties contained in Article VIII of this Agreement and each other Loan Document shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects) on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall have been true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the US Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute US Obligations and shall be secured and guaranteed with the other US Extensions of Credit on a pari passu basis;
(F) (1) in the case of each Incremental Term Loan (the terms of which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the Administrative Agent as provided below(or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Facility”) to (x) provide additional Term Loans or increase denominated, at the amount option of their Term Loans such Borrower, in Dollars, Euros and/or (y) establish any Alternative Currency, and consisting of one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”); provided that , or a combination thereof, so long as (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (or to the extent the proceeds of any Incremental Loans shall not exceed (Aare being used to finance a Permitted Acquisition or other permitted Investment, no Event of Default under Section 7.01(a), 7.01(b), 7.01(h) $400,000,000 (the “Incremental Starter Amount”or 7.01(i) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both has occurred and is continuing at the time of any execution of a binding agreement in respect of such request Acquisition or Investment and upon subject to customary “SunGard” limitations), and (ii) subject to the effectiveness provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the establishment of such Incremental Facility (or, at the option of the Borrower, (x) in the case of any Incremental Loan Amendment with respect Commitment established and not funded at such time, at the time of the initial funding of such Incremental Facility in lieu of the time at the time of such Incremental Facility Amendment) and/or (y) after giving effect to any acquisition or investment consummated or contemplated pursuant to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) agreement in connection herewith, the First Lien Indebtedness Leverage Ratio (determined computed on a pro forma basis as of the relevant determination date as if Pro Forma Basis (but without giving effect to any Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes established and/or funded at such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarterstime) shall not be greater than 3.50:1.00 (such indebtedness, “Incurrence Incremental First Lien Indebtedness”) (assuming, solely for purposes of this Section 2.20 at the time of entering into such Incremental Facility Amendment or funding of such Incremental Facility, as applicable, as elected by the Borrower, and not for any other provision hereunder, that (I) all Incremental Facilities and all Additional Term Notes, in each case established and/or issued on or prior to such time are secured on a first Lien basis, whether or not so secured, (II) all Incremental Revolving Facilities and Incremental Term Facilities consisting of delayed draw term loans established but not funded at such time are fully drawn and (III) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “First Lien Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect); providedfurther that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Effective Date not to exceed an amount equal to the sum of (x) 3.50 to 1.00 at any time during the period beginning Dollar Equivalent (calculated using the Exchange Rate on the Fifth Restatement date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $750,000,000 less any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(1) or in reliance on clause (x) of the definition of Unrestricted Incremental First Lien Indebtedness in the Seattle Credit Agreement (provided that the maximum amount deducted pursuant to this clause (x) shall not exceed $750,000,000) plus (y) the amount of any voluntary prepayments (or repurchases) of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date and ending the amount of any voluntary prepayments (or repurchases) of the Seattle Term Loans, First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on December 31a pari passu basis with the Liens securing the Obligations effected after the Effective Date (minus any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(2) or in reliance on clause (y) of the definition of “Unrestricted Incremental First Lien Indebtedness” in the Seattle Credit Agreement) (other than, 2014 in each case, any such prepayments or repurchases financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) (such Indebtedness in clauses (x) and (y), collectively, the “Unrestricted Incremental First Lien Indebtedness”) 3.25 to 1.00 thereafter; (iiit being understood and agreed that unless notified by the Borrower (I) each Person which the Borrower shall request be deemed to make an have utilized amounts of the type described in clause (y) of the Unrestricted Incremental Loan First Lien Indebtedness prior to the utilization of amounts under clause (x) of the Unrestricted Incremental First Lien Indebtedness and Incurrence Incremental First Lien Indebtedness, and the Borrower shall be subject deemed to have used Incurrence Incremental First Lien Indebtedness, (to the extent compliant therewith) prior consent to utilization of amounts of the Administrative Agent type described in clause (x) of the Unrestricted Incremental First Lien Indebtedness (it being understood and agreed that amounts incurred concurrently with the incurrence of Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes shall be permitted to exceed 3.50:1.00), (II) Loans may be incurred in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, and the proceeds from any such consent not incurrence in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, may be utilized in a single transaction by first calculating the incurrence in respect of Incurrence Incremental First Lien Indebtedness above and then calculating the incurrence in respect of Unrestricted Incremental First Lien Indebtedness and (III) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness as Incurrence Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrowers’ ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) in respect of Unrestricted Incremental First Lien Indebtedness. Each Incremental Facility shall be unreasonably withheld); in an integral multiple of $1,000,000 (iii) each tranche or, in the case of Incremental Loans shall Facilities denominated in Euros, €1,000,000) and be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (or, in the case of Incremental Facilities denominated in Euros, €25,000,000), provided that such amount may be less than $25,000,000 (or €25,000,000, as the case may be) if such lesser amount that represents all of the remaining availability under the limits aggregate principal amount of Incremental Facilities set forth in clause above.
(b) Each Incremental Term Facility (i) above)if made a part of an existing Class of Term Loans, shall have terms identical to those applicable to such Class of Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (ivA) except such Incremental Term Facility shall rank paripassu or junior in right of payment and/or security with the Term Loans hereunder or be unsecured, and if junior in right of payment and/or security or is unsecured, shall be established as a separate facility than the facility for Incremental the Term Loans requested under clause secured with the Collateral securing the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) if secured, the obligations in respect thereof shall not be secured by Liens on the assets of the Parent and the Restricted Subsidiaries, other than assets constituting Collateral, as applicable, and if established as a separate facility, shall be subject to (x) above if such Term Loans are secured on a paripassu basis with the Obligations, the Senior Representative for such Term Loans shall enter into the Pari Passu Intercreditor Agreement or other customary intercreditor agreement and (y) if such Term Loans are secured on a junior basis to the Obligations, the Senior Representative for such Term Loans shall enter into a Second Lien Intercreditor Agreement or other customary intercreditor agreement, in each case with the Administrative Agent’s and/or Collateral Agent substantially consistent with the terms set forth on Exhibit K-1 or K-2 annexed hereto together with (I) any immaterial changes and (II) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are Tranche A pari passu with, or junior in priority to, other Liens that are junior to the Liens securing the Obligations), (D) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Term Loans; provided that this clause (D) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans having a final maturity date that is prior to the Incremental Loan Latest Maturity Date with respect to the Initial Term Loans so long as such final maturity date is at least five years from the date of the such issuance or incurrence, (E) no Incremental Loans of any Series Term Facility shall not be earlier have a Weighted Average Life to Maturity that is shorter than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of such Class of Term Loans); provided that this clause (E) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans shall be greater having Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Tranche B Initial Term Loans (except that Incremental Loans without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) so long as such debt does not require annual amortization or similar regularly scheduled prepayments in excess of 10% of the original amount of such debt at issuance or incurrence in any year, (F) for purposes of mandatory prepayments, shall be entitled treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to participateInitial Term Loans, (G) the pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that solely in the event that the Yield for any Incremental Term Loans secured on a paripassu basis with the Initial Term Loans (other than (i) Incremental Term Loans incurred in reliance on clause (y) of the definition of Unrestricted Incremental First Lien Indebtedness (except if the capacity under clause (y) results from prepayments made with the proceeds of indebtedness which is pari passu in right of payment and security with the Term Loans (other than the Revolving Loans)) and (ii) any Additional Term Notes) is higher than the Yield for the Tranche B-2 Term Loans, Tranche B-3 Term Loans and the Euro Tranche Term Loans by more than 50 basis points in the case such applicable Class of Initial Term Loans, then the Applicable Margin for the Tranche B-2 Term Loans, Tranche B-3 Term Loans or Euro Tranche Term Loans, as applicable, shall be increased to the extent necessary so that the Yield for such Classes of Term Loans is equal to the Yield for such Incremental Term Loans minus 50 basis points, and (H) other terms may differ and shall be determined by the Borrower and the lenders providing such Incremental Term Loans; provided, however, the covenants and events of default of such Incremental Term Loans, if not consistent with the terms of the Initial Term Loans, shall not be materially more restrictive to the Borrower (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Initial Term Loans unless (x) the Lenders of the Initial Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of an existing tranche of Revolving Commitments shall have terms identical to those applicable to such Class of Revolving Commitments or (ii) if consisting of an additional Class of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Facility and, to the extent provided such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.04, the Issuing Bank and the Swingline Lender (such consent not to be unreasonably withheld, delayed or conditioned) (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 Parent, Holdco, the Borrower, such Additional Lender (in Section 2.09(b)the case of this Agreement and, in mandatory prepaymentsas appropriate, any other Loan Document, as applicable) (and to the extent it directly and adversely affects the rights or duties of the Administrative Agent and/or the Collateral Agent, the Administrative Agent and/or the Collateral Agent, as applicable); provided that in the event an Incremental Facility Amendment is effected without the consent of the Administrative Agent and (v) except as otherwise provided in Section 6.09(a)to which the Administrative Agent is not a party, the Borrower shall within 30 days after the date furnish a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount copy of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.In
Appears in 1 contract
Incremental Loans. The Borrower may at At any time commencing on the Closing Date through but excluding the Revolving Termination Date, provided no Default or Event of Default has occurred and is continuing and subject to the conditions set forth in clause (a) below, the Borrower may, from time to time after the Fifth Restatement Effective Datetime, by written notice request an increase to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 Total Revolving Commitment (the “Incremental Starter AmountRevolving Commitment”), in an aggregate amount not to exceed $30,000,000. Any Incremental Revolving Commitment shall be in the amount of at least $5,000,000 and integral multiples of $500,000 in excess thereof. Any Incremental Revolving Commitment shall increase, on a dollar-for-dollar basis, the Total L/C Commitment.
(a) less any Permitted Additional Indebtedness incurred pursuant Each of the following shall be conditions precedent to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment Revolving Commitment:
(i) each of the conditions precedent set forth in Section 5.2 shall be satisfied.
(ii) Borrower shall be in compliance with respect the then applicable financial covenants set forth in Section 7.1 hereof both as of the end of the most recently ended fiscal quarter prior to an the effectiveness of the Incremental Loan pursuant Revolving Commitment and immediately after giving effect to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined effectiveness of the Incremental Revolving Commitment on a pro forma basis as basis.
(iii) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate evidencing compliance with the requirements of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; clause (ii) each Person which above, together with all reasonably detailed calculations demonstrating such compliance.
(iv) the Borrower shall request to make an Incremental Loan shall be subject have delivered to the Administrative Agent, which shall in turn promptly furnish to the Lenders, an irrevocable written request for such Incremental Revolving Commitment at least ten (10) Business Days prior to the requested effective date of such Incremental Revolving Commitment.
(v) any prospective Lender, the Borrowers and the Administrative Agent have signed a joinder agreement to this Agreement (an “Joinder”), in form and substance reasonably satisfactory to the Administrative Agent, to which such prospective Lender, the Borrowers, and the Administrative Agent are party (any Joinder may, with the consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)Agent, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person Lenders or Persons prospective Lender agreeing to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date Revolving Commitment, effect such amendments to this Agreement and the Incremental other Loan Principal Payment Dates Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.23 (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (including, if applicable) , any amendment necessary to ensure and demonstrate that the rate of the commitment fee, if any, payable Liens and security interests granted by the Borrower Loan Documents are perfected under the UCC to secure the Obligations in respect of the commitment to make such Incremental Loans, together with such other information reasonably Revolving Commitment) and the Borrower shall have executed any Notes requested by any Lender in connection with the Incremental Revolving Commitment.
(b) No Lender shall be obligated to participate in any Incremental Revolving Commitment, and each such Lender’s determination to participate shall be in such Lender’s sole and absolute discretion. The Administrative Agent in connection therewith. Amounts prepaid in respect of shall invite each Revolving Lender to provide an Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, Revolving Commitment (it being understood that no Revolving Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution Revolving Commitment) and delivery to the extent, five (5) Business Day after receipt of invitation, sufficient Revolving Lenders do not agree to provide an Incremental Revolving Commitment on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” and is reasonably satisfactory to the Administrative Agent to become a Revolving Lender in connection with the proposed Incremental Revolving Commitment.
(c) Any Revolving Loans funded pursuant to the Incremental Revolving Commitment shall have the same terms as the Revolving Loans funded under the original Total Revolving Commitment.
(d) Upon the effectiveness of any Incremental Revolving Commitment, all references in this Agreement and any other Loan Document to the Total Revolving Commitment shall be deemed, unless the context otherwise requires, to include the Incremental Revolving Commitment provided pursuant to this Section 2.23.
(e) Any Revolving Loans funded under an Incremental Revolving Commitment established pursuant to this Section 2.23 shall constitute a Revolving Loan Amendment under the Loan Documents, and shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Loans.
(f) The Administrative Agent and the Lenders reserve the right to condition the effectiveness of any Incremental Revolving Commitment upon the amendment of the financial covenants contained in form reasonable satisfactory Section 7.1 hereof in a manner mutually agreeable to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRequired Lenders.
Appears in 1 contract
Sources: Credit Agreement (Enernoc Inc)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to make an incremental term loan (xany such incremental term loan, an “Incremental Term Loan”); or
(ii) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term increases in the Revolving Commitments (an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental revolving credit loans hereunder (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loan, the “Incremental Loans”); provided that (i1) the total aggregate amount for all such Incremental Loan Commitments from and after the Closing Date shall not (as of any date of incurrence thereof) exceed an amount equal to the greater of (x) $750,000,000 and (y) an amount that would not cause the Consolidated Senior Secured Leverage Ratio to exceed 2.50:1.00 for the Fiscal Quarter most recently ended for which an Officer’s Compliance Certificate has been delivered and calculated on a Pro Forma Basis after giving effect to any such incurrence of Incremental Loans shall and the use of proceeds thereof (and assuming for purposes of such calculation that in the case of an Incremental Revolving Credit Increase, such Incremental Revolving Credit Increase is fully drawn and not exceed netting cash proceeds of such Incremental Loans) and (A2) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any total aggregate amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x) 3.50 to 1.00 at any time during 1). Each such notice shall specify the period beginning date on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to effective and the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans thereunder are incurred (each, an “Increased Amount Date”), which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madenotice is delivered to Administrative Agent. The Borrower may invite any Lender, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any Affiliate of the commitment feeany Lender and/or any Approved Fund, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery satisfactory to the Administrative Agent and the Issuing Lenders, to provide an Incremental Loan Commitment (each, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. The Borrower’s ability to request an Incremental Loan Commitment shall not be affected by an election the Borrower may have otherwise made under Section 2.5 to voluntarily reduce a portion of the Revolving Commitments. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment or (2) the making of any Incremental Loans pursuant thereto; provided that in the case of an Incremental Term Loan Amendment incurred to finance an Acquisition that otherwise satisfies the requirements of the definition of “Permitted Acquisition” (other than clause (i) thereof), (x) no Default or Event of Default shall exist at the time of entry into the acquisition agreement and (y) no Event of Default under Section 10.1(a), (f) or (g) shall exist on the Increased Amount Date;
(B) the representations and warranties of the Credit Parties contained in form reasonable satisfactory this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the Administrative Agent) by extent that such Person or Personsrepresentations and warranties specifically refer to an earlier date, the Borrower in which case they are true and the Administrative Agentcorrect in all material respects as of such earlier date; provided that in the effectiveness case of an Incremental Term Loan incurred to finance an Acquisition that otherwise satisfies the requirements of the definition of “Permitted Acquisition” (other than clause (i) thereof) (x) the representations and warranties of the Credit Parties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the time of entry into the acquisition agreement, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such Incremental Loan Amendment shall be subject earlier date and (y) on the Increased Amount Date, the Specified Representations and the Acquisition Agreement Representations (as applied to the satisfaction of each target of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references acquisition to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of which such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Term Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series relate (each a “Series”) of Incremental Loans for all purposes of this Agreement.conformed as
Appears in 1 contract
Sources: Credit Agreement (Orbital Atk, Inc.)
Incremental Loans. The (a) At any time prior to the Expiration Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the total aggregate principal amount of for all such Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $500,000,000.00 and upon (ii) the effectiveness of any total aggregate principal amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 fifteen (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i15) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery notice is delivered to the Administrative Agent or such shorter period as may be agreed to by the Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of an Incremental Loan Amendment (in form reasonable any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both each Swingline Loan Lender and Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(1) by no Potential Default or Event of Default shall exist on such Person Increased Amount Date before or Personsafter giving effect to (1) any Incremental Loan Commitment, and (2) the making of any Loans pursuant thereto;
(2) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent; provided , that the effectiveness of such Incremental Loan Amendment shall be subject to Parties are in compliance with the satisfaction of each of financial covenants specified in Sections 9.10 [Maximum Leverage Ratio], 9.11 [Minimum Fixed Charge Coverage Ratio], 9.12 [Maximum Secured Indebtedness], 9.13 [Maximum Unsecured Leverage] and 9.14 [Minimum Unsecured Interest Coverage] based on the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made financial statements most recently delivered pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”Section 8.12(a) of Incremental Loans for all purposes of this Agreement.[Quarterly Financial Statements] or NAI-▇▇▇▇▇▇▇▇▇▇v16
Appears in 1 contract
Incremental Loans. The (a) After giving effect to, and by virtue of, Amendment No. 1, the Borrower may at any time or from time to time after and the Fifth Restatement Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request one or more Lenders increases of any-then existing Tranche of Revolving Commitments (including Persons who shall become Incremental Lenders each increase in Commitment pursuant to this Section 2.01(c)sentence, a “Supplemental Revolving Commitment”) to (x) provide additional Term Loans or increase hereunder, in an aggregate amount for all such Supplemental Revolving Commitments not in excess of, at the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelytime the respective Supplemental Revolving Commitments become effective, the “Maximum Incremental Loans”); provided that Facilities Amount after giving effect to Amendment No. 1 and the establishment of the Tranche B Revolving Commitments. Each such notice relating to Supplemental Revolving Commitments shall specify (i) the aggregate amount of Incremental Loans shall not exceed date (A) $400,000,000 (the each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan proposes that the Supplemental Revolving Commitments shall be subject to the prior consent of effective, which shall be a date not less than 10 Business Days (or such shorter period as the Administrative Agent (such consent not to be unreasonably withheld); (iiimay agree) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments to be madeso increased (and, if more than one Tranche of Revolving Commitments will be increased, the amount of the aggregate Supplemental Revolving Commitment to be allocated to each such Tranche); provided, that (x) any Lender offered or approached to provide all or a portion of any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (y) any Person that the Incremental Loan Maturity Borrower proposes to become a New Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent, and to the extent its consent would be required to assign Loans to any such Eligible Assignee, each Issuing Lender and the Swingline Lender.
(b) Such Tranche B Revolving Commitments shall become effective as of the Amendment No. 1 Effective Date pursuant to the terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as of the applicable Increased Amount Date; provided, that:
(i) no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Supplemental Revolving Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith subject to the Permitted Acquisition Provisions (as defined below) |US-DOCS\115543490.9|| and the Limited Condition Acquisition Provision, in connection with any acquisition or investment being made with the proceeds thereof;
(ii) the proceeds of any Supplemental Revolving Commitments shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement;
(iii) the Supplemental Revolving Commitments shall benefit, ratably with the other Commitments in the same Tranche, from the guarantees under the Guarantee and Collateral Agreement and shall only be guaranteed by the Guarantors;
(iv) the Supplemental Revolving Commitments shall be secured by the Liens on the Collateral on a pari passu basis with the Liens securing all other Obligations and the Obligations with respect to the Supplemental Revolving Commitments shall have the same payment priority as the other Obligations in the same Tranche;
(v) the conditions set forth in Section 2.34 shall be satisfied, if applicable;
(vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the Incremental Loan Principal Payment Dates same terms as the Tranche being so increased (if anyother than with respect to upfront fees) for such Incremental Loans and (z) pursuant to the Applicable Margin that will apply same documentation applicable to such Incremental Loans and Tranche;
(if applicablevii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and
(viii) to the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information extent reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrarydue authorization, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Administrative Agent Security Documents as may be reasonably necessary or advisable to ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. |US-DOCS\115543490.9|| Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any Restricted Subsidiary to finance, in whole or in part, a Permitted Acquisition, then to the extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) there need not be a condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”).
(c) On any date on which any Incremental Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Commitment.
(d) For purposes of this Agreement, any New Loans or Incremental Commitments shall be deemed to be Revolving Loans or Revolving Commitments, respectively. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Amendment (Documents as may be necessary or appropriate, in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, opinion of the Borrower and the Administrative Agent; provided that , to effect the provisions of this Section 2.25.
(e) Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in each case, such other form as may be reasonably acceptable to the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of such increased Tranche.
(f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New |US-DOCS\115543490.9|| Lender providing a portion of such Supplemental Revolving Commitment, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each Lender (including each such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or prior to the effectiveness of such Incremental Loan Amendment Supplemental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be subject to accompanied by accrued interest on the satisfaction of each of the conditions set forth Revolving Loans being prepaid and any costs incurred by any Lender in this accordance with Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement2.11.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Revlon Inc /De/)
Incremental Loans. The Borrower may at any time or from time (a) Prior to time after the Fifth Restatement Effective Datelast day of the Term, the Borrowing Agent may, by written notice to the Administrative Agent as provided below(who shall promptly notify the applicable Lenders of such request), request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an "Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment") to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more term loans, including a borrowing of an additional tranches term loan the principal amount of which will be added to the outstanding principal amount of the existing tranche of Incremental Term Loans (any such additional term loans hereunder loan, an "Incremental Term Loan"); or
(collectivelyii) one or more increases in the Revolving Commitment (any such increase, an "Incremental Revolving Credit Commitment" and, together with the Incremental Term Loan Commitments, the “"Incremental Loan Commitments") to make Revolving Advances (any such increase, an "Incremental Revolving Credit Increase" and, together with the Incremental Term Loans, the "Incremental Loans”"); provided that the total aggregate initial principal amount (ias of the date of incurrence thereof) the aggregate amount of such requested Incremental Loan Commitments and Incremental Loans shall not exceed Three Hundred Million and 00/100 Dollars (A$300,000,000).
(iii) $400,000,000 Each such notice shall specify the date (each, an "Increased Amount Date") on which the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of Borrowers propose that any Incremental Loan Amendment with respect Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Agent (or such earlier date as may be approved by the Agent).
(iv) The Borrowers may invite any Lender, any Affiliate of any Lender and/or any other Person, to provide an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31Commitment, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (and the Issuer and Swing Loan Lender, in each case, such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(bsuch consent would be required for an assignment by such Person (any such Person, an "Incremental Lender"), in mandatory prepayments); and subject to the requirements of Section 16.3.
(v) except as otherwise provided Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in Section 6.09(a)its sole discretion, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide Commitment or any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementportion thereof.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Delayed Draw Term Loan and Security Agreement (Ati Inc)
Incremental Loans. The (a) Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or an increase in the principal amount of their Term Loans and/or (y) establish the Loans, or request one or more additional tranches of term loans hereunder Loans (collectively, the “Incremental Loans”); provided that the aggregate principal amount of Incremental Loans incurred under this Section 2.15 after the Amendment No. 6 Closing Date shall not exceed an amount equal to the sum of (a) $100 million plus (b) an additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00 of additional Indebtedness under Section 7.1(a) and (ii) the pro forma Consolidated Secured Net Leverage Ratio of Borrower (calculated without netting the cash proceeds of such Incremental Loans) does not exceed 3.00:1.00 (the “Ratio Incremental Basket”); provided that when calculating the Consolidated Secured Net Leverage Ratio for purposes of this Section 2.15(a) at any time, the maximum amount of Indebtedness that Borrower is permitted to incur under its undrawn commitments under (A) the ABL Credit Agreement as in effect at such time and (B) the Con-way Bridge Credit Agreement as in effect at such time shall, in each case, be deemed outstanding and secured by a Lien. Such notice shall set forth (x) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (y) the date on which such Incremental Commitments are requested to become effective (which shall not be less than ten (10) Business Days nor more than sixty (60) days after the date of such notice (or such longer or shorter periods as Agent shall agree)) and (ii) whether such Incremental Loans are intended to be increases to the existing Loans or are intended to be a new tranche of Loans with terms different from the Loans. Borrower may seek Incremental Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.
(b) It shall be a condition precedent to the incurrence of the Incremental Loans that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, (ii) the representations and warranties set forth in Section 4 and in each other Loan Document shall be true and correct in all material respects on and as of the date the Incremental Loans are made, except to the extent that such representations or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c); provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental Loans are being used to finance a Limited Condition Acquisition.
(c) The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental Lender”) and set forth in an Incremental Amendment; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time final maturity date of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be no earlier than the Tranche B Term Loan Latest Maturity Date Date, (except that ii) the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the Incremental Loans shall be greater no shorter than the remaining Weighted Average Life to Maturity of any then-existing Loans, (iii) the Tranche B Term Incremental Loans will rank pari passu in right of payment and with respect to security with the Loans, (except that iv) none of the borrower or guarantors with respect to the Incremental Loans shall be entitled to participatea Person that is not a Credit Party and the Incremental Loans shall not be secured by assets that do not constitute Collateral, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to any Incremental Loans incurred pursuant to clause (a) of this Section 2.15, (A) if the All-in Yield on any tranche of such TV/Radio SubsidiaryIncremental Loans incurred within twelve (12) months of the Amendment No. Such notice shall specify 6 Closing Date exceeds the initial All-in Yield for the Term B Loans by more than 50 basis points (w) or, in the case of up to $500,000,000 aggregate principal amount of such Incremental Loans incurred on or prior to the date that is 90 days after March 7, 2019, 75 basis points) (the amount of such excess above 50 or 75 basis points, as applicable, being referred to herein as the “Term B Loan Yield Differential”), then the Applicable Margin for such Term B Loans shall automatically be increased by the Term B Loan Yield Differential applicable to such Term B Loans effective upon the making of the Incremental Loans (and Borrower shall be entitled, without the Person consent of any other Lender, to increase the All-in Yield on such Term B Loans as necessary to ensure the Incremental Loans are “fungible” with such Term B Loans) and (B) if the All-in Yield on any such Incremental Loans incurred on or Persons prior to provide the date that is 12 months following the Amendment No. 5 Closing Date exceeds the initial All-in Yield for the Term B-1 Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B-1 Loan Yield Differential”), then the Applicable Margin for such Term B-1 Loans shall automatically be increased by the Term B-1 Loan Yield Differential applicable to such Term B-1 Loans effective upon the making of the Incremental Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B-1 Loans as necessary to ensure the Incremental Loans are “fungible” with such Term B-1 Loans),, (vi) the Incremental Loans may share ratably or less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to the extent the terms of the Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably satisfactory to Agent.
(d) In connection with any Incremental Loans, (x) the date on which such Borrower, Agent and each applicable Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated execute and deliver to provide any Incremental Loans. Any Person or Persons shall become Agent an Incremental Lender hereunder upon execution and delivery amendment to this Agreement (which may take the Administrative Agent form of an amendment and restatement of this Agreement) (an “Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment”) and such other conditions documentation as Agent shall reasonably specify to evidence the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant of each Incremental Lender. Agent shall promptly notify each Lender as to the same effectiveness of each Incremental Amendment. Any Incremental Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Amendment shall Documents as may be deemed necessary or appropriate, in the reasonable opinion of Agent and Borrower, to be a separate series (each a “Series”) effect the provisions of this Section 2.15, including any amendments necessary to establish the Incremental Loans for all purposes as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and Borrower in connection with the establishment of such new class or tranche, in each case on terms consistent with this AgreementSection 2.15.
(e) This Section 2.15 shall supersede any provision in Section 2.9 or 12.2.
Appears in 1 contract
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the Administrative Agent as provided below(or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Facility”) to (x) provide additional Term Loans or increase denominated, at the amount option of their Term Loans such Borrower, in Dollars, Euros and/or (y) establish any Alternative Currency, and consisting of one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”); provided that , or a combination thereof, so long as (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (or to the extent the proceeds of any Incremental Loans shall not exceed (Aare being used to finance a Permitted Acquisition or other permitted Investment, no Event of Default under Section 7.01(a), 7.01(b), 7.01(h) $400,000,000 (the “Incremental Starter Amount”or 7.01(i) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both has occurred and is continuing at the time of any execution of a binding agreement in respect of such request Acquisition or Investment and upon subject to customary “SunGard” limitations), and (ii) subject to the effectiveness provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the establishment of such Incremental Facility (or, at the option of the Borrower, (x) in the case of any Incremental Loan Amendment with respect Commitment established and not funded at such time, at the time of the initial funding of such Incremental Facility in lieu of the time at the time of such Incremental Facility Amendment) and/or (y) after giving effect to any acquisition or investment consummated or contemplated pursuant to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) agreement in connection herewith, the First Lien Indebtedness Leverage Ratio (determined computed on a pro forma basis as of the relevant determination date as if Pro Forma Basis (but without giving effect to any Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes established and/or funded at such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarterstime) shall not be greater than 3.50:1.00 (such indebtedness, “Incurrence Incremental First Lien Indebtedness”) (assuming, solely for purposes of this Section 2.20 at the time of entering into such Incremental Facility Amendment or funding of such Incremental Facility, as applicable, as elected by the Borrower, and not for any other provision hereunder, that (I) all Incremental Facilities and all Additional Term Notes, in each case established and/or issued on or prior to such time are secured on a first Lien basis, whether or not so secured, (II) all Incremental Revolving Facilities and Incremental Term Facilities consisting of delayed draw term loans established but not funded at such time are fully drawn and (III) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “First Lien Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect); provided further that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Effective Date not to exceed an amount equal to the sum of (x) 3.50 to 1.00 at any time during the period beginning Dollar Equivalent (calculated using the Exchange Rate on the Fifth Restatement date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $750,000,000 less any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(1) or in reliance on clause (x) of the definition of Unrestricted Incremental First Lien Indebtedness in the Seattle Credit Agreement (provided that the maximum amount deducted pursuant to this clause (x) shall not exceed $750,000,000) plus (y) the amount of any voluntary prepayments (or repurchases) of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date and ending the amount of any voluntary prepayments (or repurchases) of the Seattle Term Loans, First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on December 31a pari passu basis with the Liens securing the Obligations effected after the Effective Date (minus any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(2) or in reliance on clause (y) of the definition of “Unrestricted Incremental First Lien Indebtedness” in the Seattle Credit Agreement) (other than, 2014 in each case, any such prepayments or repurchases financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) (such Indebtedness in clauses (x) and (y), collectively, the “Unrestricted Incremental First Lien Indebtedness”) 3.25 to 1.00 thereafter; (iiit being understood and agreed that unless notified by the Borrower (I) each Person which the Borrower shall request be deemed to make an have utilized amounts of the type described in clause (y) of the Unrestricted Incremental Loan First Lien Indebtedness prior to the utilization of amounts under clause (x) of the Unrestricted Incremental First Lien Indebtedness and Incurrence Incremental First Lien Indebtedness, and the Borrower shall be subject deemed to have used Incurrence Incremental First Lien Indebtedness, (to the extent compliant therewith) prior consent to utilization of amounts of the Administrative Agent type described in clause (x) of the Unrestricted Incremental First Lien Indebtedness (it being understood and agreed that amounts incurred concurrently with the incurrence of Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes shall be permitted to exceed 3.50:1.00), (II) Loans may be incurred in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, and the proceeds from any such consent not incurrence in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, may be utilized in a single transaction by first calculating the incurrence in respect of Incurrence Incremental First Lien Indebtedness above and then calculating the incurrence in respect of Unrestricted Incremental First Lien Indebtedness and (III) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness as Incurrence Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrowers’ ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) in respect of Unrestricted Incremental First Lien Indebtedness. Each Incremental Facility shall be unreasonably withheld); in an integral multiple of $1,000,000 (iii) each tranche or, in the case of Incremental Loans shall Facilities denominated in Euros, €1,000,000) and be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (or, in the case of Incremental Facilities denominated in Euros, €25,000,000), provided that such amount may be less than $25,000,000 (or €25,000,000, as the case may be) if such lesser amount that represents all of the remaining availability under the limits aggregate principal amount of Incremental Facilities set forth in clause above.
(b) Each Incremental Term Facility (i) above)if made a part of an existing Class of Term Loans, shall have terms identical to those applicable to such Class of Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (ivA) except such Incremental Term Facility shall rank pari passu or junior in right of payment and/or security with the Term Loans hereunder or be unsecured, and if junior in right of payment and/or security or is unsecured, shall be established as a separate facility than the facility for Incremental the Term Loans requested under clause secured with the Collateral securing the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) if secured, the obligations in respect thereof shall not be secured by Liens on the assets of the Parent and the Restricted Subsidiaries, other than assets constituting Collateral, as applicable, and if established as a separate facility, shall be subject to (x) above if such Term Loans are secured on a pari passu basis with the Obligations, the Senior Representative for such Term Loans shall enter into the Pari Passu Intercreditor Agreement or other customary intercreditor agreement and (y) if such Term Loans are secured on a junior basis to the Obligations, the Senior Representative for such Term Loans shall enter into a Second Lien Intercreditor Agreement or other customary intercreditor agreement, in each case with the Administrative Agent’s and/or Collateral Agent substantially consistent with the terms set forth on Exhibit K-1 or K-2 annexed hereto together with (I) any immaterial changes and (II) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are Tranche A pari passu with, or junior in priority to, other Liens that are junior to the Liens securing the Obligations), (D) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Term Loans; provided that this clause (D) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans having a final maturity date that is prior to the Incremental Loan Latest Maturity Date with respect to the Initial Term Loans so long as such final maturity date is at least five years from the date of the such issuance or incurrence, (E) no Incremental Loans of any Series Term Facility shall not be earlier have a Weighted Average Life to Maturity that is shorter than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of such Class of Term Loans); provided that this clause (E) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans shall be greater having Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Tranche B Initial Term Loans (except that Incremental Loans without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) so long as such debt does not require annual amortization or similar regularly scheduled prepayments in excess of 10% of the original amount of such debt at issuance or incurrence in any year, (F) for purposes of mandatory prepayments, shall be entitled treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to participateInitial Term Loans, (G) the pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that solely in the event that the Yield for any Incremental Term Loans secured on a pari passu basis with the Initial Term Loans (other than (i) Incremental Term Loans incurred in reliance on clause (y) of the definition of Unrestricted Incremental First Lien Indebtedness (except if the capacity under clause (y) results from prepayments made with the proceeds of indebtedness which is pari passu in right of payment and security with the Term Loans (other than the Revolving Loans)) and (ii) any Additional Term Notes) is higher than the Yield for the Tranche B-2 Term Loans, Tranche B-3 Term Loans and the Euro Tranche Term Loans by more than 50 basis points in the case such applicable Class of Initial Term Loans, then the Applicable Margin for the Tranche B-2 Term Loans, Tranche B-3 Term Loans or Euro Tranche Term Loans, as applicable, shall be increased to the extent necessary so that the Yield for such Classes of Term Loans is equal to the Yield for such Incremental Term Loans minus 50 basis points, and (H) other terms may differ and shall be determined by the Borrower and the lenders providing such Incremental Term Loans; provided, however, the covenants and events of default of such Incremental Term Loans, if not consistent with the terms of the Initial Term Loans, shall not be materially more restrictive to the Borrower (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Initial Term Loans unless (x) the Lenders of the Initial Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of an existing tranche of Revolving Commitments shall have terms identical to those applicable to such Class of Revolving Commitments or (ii) if consisting of an additional Class of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Facility and, to the extent provided such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.04, the Issuing Bank and the Swingline Lender (such consent not to be unreasonably withheld, delayed or conditioned) (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 Parent, Holdco, the Borrower, such Additional Lender (in Section 2.09(b)the case of this Agreement and, in mandatory prepaymentsas appropriate, any other Loan Document, as applicable) (and to the extent it directly and adversely affects the rights or duties of the Administrative Agent and/or the Collateral Agent, the Administrative Agent and/or the Collateral Agent, as applicable); provided that in the event an Incremental Facility Amendment is effected without the consent of the Administrative Agent and (v) except as otherwise provided in Section 6.09(a)to which the Administrative Agent is not a party, the Borrower shall within 30 days after the date furnish a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount copy of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.suc
Appears in 1 contract
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments when combined with the aggregate outstanding principal amount of Additional Pari Passu Debt shall not (as of any date of incurrence thereof) exceed $250,000,000160,000,000 (after giving effect to the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) made on the First Lien Amendment Effective Date) or, if greater, an amount equal to the principal amount of additional Indebtedness that would cause the Consolidated Total Net Leverage Ratio (determined on a pro forma basis as of the relevant determination date as if four (4) consecutive fiscal quarter period most recently ended prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 2.50 to 1.00 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans pursuant to this Section 2.01(c)(i)(Bmade thereunder) had been outstanding (other than the Incremental Loans made on the most recent period of four consecutive fiscal quartersFirst Amendment Effective Date) shall not be greater less than a minimum principal amount of $100,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall be madehave received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and Commitment being deemed to be fully funded but without netting the cash proceeds received in connection with any Incremental Loan Principal Payment Dates (if anyCommitment) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent any Permitted Acquisition consummated in connection therewith. Amounts prepaid ;
(C) each of the representations and warranties contained in respect Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person used for working capital or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent general corporate purposes of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Amendment Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(F) (1) in the case of each Incremental Term Loan (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Incremental Loans. The (a) After giving effect to, and by virtue of, Amendment No. 1, the Borrower may at any time or from time to time after and the Fifth Restatement Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request one or more Lenders increases of any-then existing Tranche of Revolving Commitments (including Persons who shall become Incremental Lenders each increase in Commitment pursuant to this Section 2.01(c)sentence, a “Supplemental Revolving Commitment”) to (x) provide additional Term Loans or increase hereunder, in an aggregate amount for all such Supplemental Revolving Commitments not in excess of, at the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelytime the respective Supplemental Revolving Commitments become effective, the “Maximum Incremental Loans”); provided that Facilities Amount after giving effect to Amendment No. 1 and the establishment of the Tranche B Revolving Commitments. Each such notice relating to Supplemental Revolving Commitments shall specify (i) the aggregate amount of Incremental Loans shall not exceed date (A) $400,000,000 (the each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan proposes that the Supplemental Revolving Commitments shall be subject to the prior consent of effective, which shall be a date not less than 10 Business Days (or such shorter period as the Administrative Agent (such consent not to be unreasonably withheld); (iiimay agree) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments to be madeso increased (and, if more than one Tranche of Revolving Commitments will be increased, the amount of the aggregate Supplemental Revolving Commitment to be allocated to each such Tranche); provided, that (x) any Lender offered or approached to provide all or a portion of any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (y) any Person that the Incremental Loan Maturity Borrower proposes to become a New Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent, and to the extent its consent would be required to assign Loans to any such Eligible Assignee, each Issuing Lender and the Swingline Lender.
(b) Such Tranche B Revolving Commitments shall become effective as of the Amendment No. 1 Effective Date pursuant to the terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as of the applicable Increased Amount Date; provided, that:
(i) no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Supplemental Revolving Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith subject to the Permitted Acquisition Provisions (as defined below) and the Limited Condition Acquisition Provision, in connection with any acquisition or investment being made with the proceeds thereof;
(ii) the proceeds of any Supplemental Revolving Commitments shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement;
(iii) the Supplemental Revolving Commitments shall benefit, ratably with the other Commitments in the same Tranche, from the guarantees under the Guarantee and Collateral Agreement and shall only be guaranteed by the Guarantors;
(iv) the Supplemental Revolving Commitments shall be secured by the Liens on the Collateral on a pari passu basis with the Liens securing all other Obligations and the Obligations with respect to the Supplemental Revolving Commitments shall have the same payment priority as the other Obligations in the same Tranche;
(v) the conditions set forth in Section 2.34 shall be satisfied, if applicable;
(vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the Incremental Loan Principal Payment Dates same terms as the Tranche being so increased (if anyother than with respect to upfront fees) for such Incremental Loans and (z) pursuant to the Applicable Margin that will apply same documentation applicable to such Incremental Loans and Tranche;
(if applicablevii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and
(viii) to the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information extent reasonably requested by the Administrative Agent Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in connection therewith. Amounts prepaid in respect specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of Incremental Loans credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may not be reborrowedreasonably necessary or advisable to ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. Notwithstanding anything herein to the contrarycontrary above, no Lender in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any Restricted Subsidiary to finance, in whole or in part, a Permitted Acquisition, then to the extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be obligated (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to provide the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) there need not be a condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”).
(c) On any date on which any Incremental Loans. Any Person or Persons Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Commitment (each, a “New Lender”) shall become an Incremental a Lender hereunder upon execution with respect to such Incremental Commitment.
(d) For purposes of this Agreement, any New Loans or Incremental Commitments shall be deemed to be Revolving Loans or Revolving Commitments, respectively. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and delivery to the Administrative Agent other Loan Documents as may be necessary or appropriate, in the opinion of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that , to effect the provisions of this Section 2.25.
(e) Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in each case, such other form as may be reasonably acceptable to the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of such increased Tranche.
(f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of such Supplemental Revolving Commitment, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each Lender (including each such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or prior to the effectiveness of such Incremental Loan Amendment Supplemental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be subject to accompanied by accrued interest on the satisfaction of each of the conditions set forth Revolving Loans being prepaid and any costs incurred by any Lender in this accordance with Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement2.11.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Commitments in an amount not to exceed the Incremental Loan Amount determined as of the date of such request from one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyLenders, the “Incremental Loans”)which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the aggregate amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as the Administrative Agent and the relevant Incremental Lenders may agree) nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Loans or commitments to make loans with terms different from the Loans (“Other Loans”), in which case such notice shall specify the terms of such Other Loans.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement, an Incremental Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Loans shall not exceed be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) if the yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the interest rate per annum applicable to such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus Average Life of such Other Loans and (B) additional amounts four and (z) any transaction fees, commitment fees, exit fees (other than any prepayment premium) or other similar fees payable in respect of the Other Loans and the fair market value of any warrants, options, stock or other non-cash consideration payable in respect thereof) exceeds the Applicable Rate by more than 25 basis points (the amount of such excess above the Applicable Rate being referred to herein as the “Yield Differential”), then the Applicable Rate shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) if the optional prepayment of such Other Loans during any period is subject to a prepayment premium that would exceed the Applicable Prepayment Premium in respect of the Loans during such period (without regard to the amount of any Applicable Prepayment Premium applicable to the Loans in prior periods) by more than 25 basis points, then the Applicable Prepayment Premium shall be increased by an amount equal to the amount by which such prepayment premium exceeds the Applicable Prepayment Premium in respect of the Loans. The other terms of the Incremental Loans and the Incremental Loan Assumption Agreement, to the extent not consistent with the terms applicable to the Loans hereunder, shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower and the Restricted Subsidiaries or are more favorable to the Lenders making such Other Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as both at such Other Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the time part of any Person effective as of the date of such request and Incremental Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant to Commitment and the Incremental Loans evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause 2.08 unless (i) above); at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (vii) except as otherwise provided specified in Section 6.09(a)the applicable Incremental Loan Assumption Agreement, the Borrower Administrative Agent shall within 30 days after have received (with sufficient copies for each of the date a Person becomes a TV/Radio Subsidiary cause Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Collateral Administrative Agent and Guarantee Requirement to be satisfied consistent with those delivered on the Closing Date under Section 6.01 and (iii) all fees an expenses owing in respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans Commitment to the Administrative Agent, the Collateral Agent and the Person or Persons to provide such Lenders shall have been paid.
(d) To the extent any Incremental Loans are not Other Loans, (xthe scheduled amortization payments under Section 3.01(a) required to be made after the date on which making of such Incremental Loans shall be maderatably increased to provide for the pro rata payment of the principal of such Incremental Loans.
(e) The Borrower hereby agrees that if the Borrower obtains commitments from any bank or financial institution (other than any Initial Lender) to provide Incremental Commitments (the “Proposed Incremental Commitments”), the Borrower shall, without regard to whether the terms on which such Proposed Incremental Commitments are offered to it by any such institution are more or less favorable to it than any previously offered by the Initial Lenders, provide written notice thereof (yan “Incremental Offer Notice”) to the Initial Lenders setting forth such terms and shall offer the Initial Lenders the right (a “Participation Right”) to provide (on such terms) the portion of the Proposed Incremental Loan Maturity Date Commitments that, after giving effect to the provision of the Proposed Incremental Commitments and the Incremental Loan Principal Payment Dates (if any) for such making of the Incremental Loans thereunder, would result in the Initial Lenders (taken together) holding Loans representing no less than 51% of the outstanding principal amount of all Loans. Within three Business Days following receipt of such notice, one or more Initial Lenders shall provide written notice to the Borrower in the event that such Initial Lenders elect to exercise such Participation Right (in whole or in part). If any Initial Lender elects to exercise such Participation Rights through one or more of its Affiliates or Approved Funds, the portion of the Proposed Incremental Commitments to be provided by such Initial Lender shall be allocated among such Affiliates or Approved Funds as such Initial Lender shall designate to the Borrower in writing. If the Initial Lenders elect not to exercise all or any portion of such Participation Right to provide the Proposed Incremental Commitments, such Proposed Incremental Commitments and (z) Incremental Loans to be made thereunder and the Applicable Margin portion of the Proposed Incremental Commitments and Incremental Loans not subject to such Participation Right shall be made by the bank or other financial institutions that will apply originally agreed to make such Proposed Incremental Loans, in each case on terms no more favorable to such Incremental Loans and (if applicable) Lenders than those specified in the rate Incremental Offer Notice, on or before the date that is 60 days after the date on which the Initial Lender’s right to exercise the Participation Right expired. For the avoidance of doubt, the Borrower shall not be obligated to offer any Participation Right to the Initial Lenders, if, after giving effect to the provision of the commitment feeProposed Incremental Commitments and the making of the Incremental Loans thereunder, if anyin each case by one or more other Incremental Lenders, payable the Initial Lenders would nevertheless hold Loans representing at least 51% of the outstanding principal amount of all Loans. The acceptance or rejection of any offer to the Initial Lenders by the Borrower in respect of the commitment to make Proposed Incremental Commitments contemplated by any Incremental Offer Notice shall not operate as a waiver or affect in any other manner such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid party’s rights hereunder in respect of any other Incremental Loans may not be reborrowed. Notwithstanding anything herein to Offer Notice or the contrary, no Lender shall be obligated to provide any Proposed Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementCommitments contemplated thereby.
Appears in 1 contract
Incremental Loans. The (a) In addition to the $400,000,000 in aggregate principal amount of 2018 Delayed Draw Tranche A Term Loans established on the Sixth Amendment Effective Date pursuant to the Sixth Amendment and the $500,000,000 Revolving Commitment Increase established pursuant to the Eighth Amendment, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders new term loans (including Persons who shall each, a “New Term Loan Commitment”) or increases of existing Term Loans (each, a “Supplemental Term Loan Commitment”) or new revolving commitments (each, a “New Revolving Commitment”) (but no more than three tranches at any time outstanding in the case of revolving commitments) or increases of existing Revolving Commitments (each, a “Revolving Commitment Increase”; together with any New Term Loan Commitments, any Supplemental Term Loan Commitments and any Revolving Commitment Increase, the “New Loan Commitments”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of, at the time the respective New Loan Commitments become effective, (x) the Maximum Incremental Lenders Facility Amount and (y) an additional amount not to exceed, together with (i) all other New Loan Commitments established pursuant to this Section 2.01(c2.25(a)(y) and (ii) Additional Obligations incurred pursuant to Section 7.2(p)) , the greater of $627,000,000909,000,000 or 100% of Consolidated EBITDA, as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, in the aggregate. For purposes of determining compliance with the foregoing sentence of this Section 2.25(a), in the event that New Loan Commitments can be incurred under either clause (x) provide additional Term Loans or increase (y) of such sentence, the Borrower shall, in its sole discretion, classify such New Loan Commitments (or any portion thereof) and may include the amount of their Term Loans and/or such New Loan Commitments in one or both of such clauses; provided that, at the Borrower’s option, capacity to incur New Loan Commitments pursuant to clause (x) shall be deemed to be utilized prior to any utilization of clause (y) to establish one New Loan Commitments. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent; provided that any Lender offered or more additional tranches approached to provide all or a portion of term loans hereunder any New Loan Commitments may elect or decline, in its sole discretion, to provide such New Loan Commitments.
(collectively, the “Incremental Loans”)b) Such New Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments and the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time making of any such request New Loans pursuant thereto and upon any transaction consummated in connection therewith (or, in the effectiveness case of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(Bincurrence of New Loans necessary or advisable (as determined by the Borrower in good faith) for the First Lien Indebtedness Ratio (determined on consummation of a pro forma basis Limited Condition Acquisition, no Default or Event of Default exists as of the relevant determination date as the definitive acquisition agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of delivery of an irrevocable notice or declaration of such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafterLimited Condition Acquisition)); (ii) each Person which the Borrower shall request be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to make an Incremental Loan Section 6.1 at the effective time of such commitments; (iii) the proceeds of any New Loans shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement; (iv) the New Loans shall be secured by the Collateral on a pari passu or, at the Borrower’s option, junior basis (so long as any such New Loan Commitments (and related Obligations) are subject to an Intercreditor Agreement or an Other Intercreditor Agreement) and shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) in the case of New Loans that are term loans (“New Term Loans”), the maturity date thereof shall not be earlier than the Latest Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Latest Maturing Tranche A Term Loans (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, 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 Latest Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable); (vi) in the case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall not require any scheduled commitment reductions prior consent to the Revolving Termination Date; (vii) the New Revolving Loans shall share ratably in any mandatory prepayments or utilizations of the existing Revolving Loans; (viii) subject to Section 2.24, commitment reductions shall apply ratably to the Revolving Commitments and any commitments in respect of New Revolving Loans; provided that the Borrower may reduce 100% of the commitments of any revolving facility on a non-pro rata basis with the commitments under any other revolving facility hereunder; provided further that at the request of the Borrower, in lieu of such application on a pro rata basis among all Revolving Commitments, such reduction may be applied to any Revolving Commitments so long as the termination date of such Revolving Commitments precedes the termination date of each other Tranche of Revolving Commitments then outstanding or, in the event more than one Tranche of Revolving Commitments shall have an identical termination date that precedes the termination date of each other Tranche of Revolving Commitments then outstanding, to such Tranches on a pro rata basis; (ix) all terms and documentation with respect to any New Loans which differ from those with respect to the Loans under the applicable Facility shall be reasonably satisfactory to the Administrative Agent (such consent not except to be unreasonably withheldthe extent permitted by clauses (iv), (v) and (vi) above and the last sentence of this paragraph and, with respect to the 2018 Delayed Draw Tranche A Term Commitments, except to the extent set forth in the Sixth Amendment); (iiix) such New Loans or New Loan Commitments (other than Supplemental Term Loan Commitments and Revolving Commitment Increases) shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; (xi) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each tranche other Loan Party to be party thereto and the enforceability of Incremental the applicable Joinder Agreement, Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under, such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the New Loan Commitments and the extensions of credit thereunder and (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby; and (xii) if the initial “spread” (for purposes of this Section 2.25, the “spread” with respect to any Term Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Term Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to any New Term Loan, made on or prior to the 24-month anniversary of the Third Amendment Effective Date, with annual amortization of less than 5.0% exceeds the spread then in effect with respect to the Initial Tranche B Term Loans by more than 0.50%, the Applicable Margin relating to the Initial Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loans does not exceed the spread applicable to the Initial Tranche B Term Loans by more than 0.50%; provided that if such New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Tranche B Term Loans would cause an aggregate principal amount that is increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not less than $10,000,000 the Applicable Margin) applicable to the Initial Tranche B Term Loans shall be increased by such amount. For the avoidance of doubt, the rate of interest and the amortization schedule (or such lesser amount that represents all if applicable) of any New Loan Commitments shall be determined by the remaining availability under Borrower and the limits applicable New Lenders and shall be set forth in clause the applicable Joinder Agreement.
(ic) above); On any Increased Amount Date on which any New Loan Commitment become effective, subject to the foregoing terms and conditions, each lender with a New Loan Commitment (iveach, a “New Lender”) except for Incremental shall become a Lender hereunder with respect to such New Loan Commitment.
(d) For purposes of this Agreement, any New Loans requested or New Loan Commitments shall be deemed to be Term Loans, Revolving Loans or Revolving Commitments, as applicable. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25.
(e) Supplemental Term Loan Commitments and Revolving Commitment Increases shall become commitments under clause this Agreement pursuant to (x) above that are in the case of the 2016 Supplemental Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madeThird Amendment, (y) in the Incremental Loan Maturity Date and case of the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and 2018 Delayed Draw Tranche A Term Commitments, the Sixth Amendment or (z) otherwise, a supplement specifying the Applicable Margin that will apply Term Loan Tranche or Revolving Tranche to such Incremental Loans and (if applicable) the rate of the commitment feebe increased, if any, payable executed by the Borrower and each increasing Lender substantially in respect of the commitment to make such Incremental Loansform attached hereto as Exhibit L-1 (the “Increase Supplement”) or by each New Lender substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), together with such other information reasonably requested by as the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans case may not be reborrowed. Notwithstanding anything herein to the contrarybe, no Lender which shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery delivered to the Administrative Agent for recording in the Register. Upon effectiveness of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsLender Joinder Agreement, the Borrower each New Lender shall be a Lender for all intents and purposes of this Agreement and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans term loan made pursuant to the same Incremental such Supplemental Term Loan Amendment Commitment shall be deemed a Term Loan or the commitments made pursuant to such Revolving Commitment Increase shall be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Commitments, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Booz Allen Hamilton Holding Corp)
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment” or the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (x) provide additional Term Loans any such increase, an “Incremental Revolving Credit Increase” or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed (A) the greater of (x) $135,000,000 and (y) 100% of Consolidated EBITDA, plus (B) an amount (not less than $0) equal to the amount of additional Indebtedness that would cause the Total Net Leverage Ratio as of the most recently ended Measurement Period prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully-drawn), not to exceed 3.25 to 1.00 (provided that such amount in this clause (B) may be in the form of Incremental Equivalent Debt, as permitted under Section 9.1(m)) (provided that, in each case, any amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred funded pursuant to Section 7.01(mthe terms of this Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis) plus and (Bii) additional amounts so long as both at the time of any such request and upon the effectiveness of any total aggregate principal amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000. Each such notice shall specify the date (xeach, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower shall first invite existing Lenders and may then invite any Affiliate of any Lender and/or any Approved Fund and/or any other Person reasonably satisfactory to the Administrative Agent to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall be madehave received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants specified in Section 9.16 [Total Net Leverage Ratio] and Section 9.17 [Interest Coverage Ratio], based on the financial statements most recently delivered pursuant to Section 8.1(a) [Annual Financial Statements] or Section 8.1(b) [Quarterly Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the Applicable Margin representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that will apply by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Swingline Loans and Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein on the applicable Increased Amount Date among the Lenders to the contraryRevolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, no Lender and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(2) Incremental Loan Commitments shall be obligated effected pursuant to provide any Incremental Loans. Any Person such amendments to this Agreement and the other Loan Documents as may be necessary or Persons shall become an Incremental Lender hereunder upon execution and delivery to appropriate, in the Administrative Agent opinion of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to effect the provisions of this Section 2.11, without the consent of any other Lenders; and
(3) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Person or PersonsIncremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agreeRevolving Credit Commitment. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.ARTICLE 245 [RESERVED]
Appears in 1 contract
Sources: Credit Agreement (Kratos Defense & Security Solutions, Inc.)
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Fourth Amendment Effective Date, the applicable Borrowers may by written notice from the Borrowing Agent to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to increase the maximum principal amount of revolving credit loans permitted hereunder (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed Twenty Million and 00/100 Dollars ($20,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of Five Million and 00/100 Dollars (x$5,000,000) 3.50 or, if less, the remaining amount permitted pursuant to 1.00 at any time during the period beginning foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an applicable Borrowers propose that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans notice is delivered to Administrative Agent. The Borrowers shall be madeinvite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by , to provide an Incremental Loan Commitment (any such Person or PersonsPerson, the Borrower and the Administrative Agentan “Incremental Lender”); provided that the effectiveness Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (including any existing Lender) providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Amendment Commitment. Any Incremental Loan Commitment shall be subject become effective as of such Increased Amount Date; provided that:
(A) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrowing Agent on behalf of the applicable Borrowers a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the satisfaction of each of Administrative Agent, that the conditions set forth Loan Parties are in this Section compliance with the financial covenants specified in Sections 9.2.13 [Minimum Consolidated Fixed Charge Coverage Ratio] and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement9.
Appears in 1 contract
Incremental Loans. The Borrower may at (a) At any time or and from time to time after the Fifth Restatement Effective earlier of (i) the date that is three months after the Funding Date and (ii) the completion of the syndication of the Facilities (as determined by the Joint Bookrunning Managers) and, with respect to Incremental Revolving Commitments, prior to the Revolving Maturity Date, and, with respect to Incremental Term Loans, prior to the Tranche B Maturity Date, in each case subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent as provided below(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term existing Revolving Commitments (“Incremental Revolving Commitments” and Loans made pursuant to such Incremental Revolving Commitments, “Incremental Revolving Loans”) and/or (y) establish add one or more additional tranches of term loans hereunder (collectivelythe “Incremental Term Loans” and, the together with Incremental Revolving Loans, “Incremental Loans”); , provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any each such request and upon the effectiveness of any each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(BFacility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the First Lien Indebtedness Ratio (determined Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the covenants contained in Section 6.12 and 6.13 recomputed as of the relevant determination date as if such last day of the most-recently ended fiscal quarter of the Borrower, (C) the Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on shall constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under and as defined in the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 Convertible Notes Documents and (yD) 3.25 the Borrower shall have delivered a certificate of a Financial Officer to 1.00 thereafter; the effect set forth in clauses (iiA), (B) each Person and (C) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower shall request has not delivered to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not the financial statements and certificate of a Financial Officer required to be unreasonably withhelddelivered by Section 5.01(a) or (b) and Section 5.01(c); (iii) each , respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans shall not exceed $400,000,000, of which not more than $100,000,000 may be Incremental Revolving Loans. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 (100,000,000, in the case of Incremental Term Loans, and $25,000,000, in the case of Incremental Revolving Loans, provided that such amount may be less than $100,000,000 or $25,000,000, as the case may be, if such lesser amount that represents all of the remaining availability under the limits aggregate principal amount of Incremental Term Loans or Incremental Revolving Loans, respectively, set forth in clause above.
(b) The Incremental Term Loans (i) above); (iv) except for Incremental Loans requested under clause (x) above that are shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Commitments and the Tranche A B Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans and (iii) other than amortization, pricing or maturity date, shall have the same terms as the Tranche B Term Loans, provided that (A) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to any Incremental Term Loan Maturity Date exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans) relating to the Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Tranche B Term Loans of shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.25%, (B) any Series Incremental Term Loan shall not be have a final maturity date earlier than the Tranche B Maturity Date, and (C) any Incremental Term Loan Maturity Date (except shall not have a weighted average life that is shorter than the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity weighted average life of the then-remaining Tranche B Term Loans.
(c) The Incremental Revolving Loans and Incremental Revolving Commitments (i) shall be greater than rank pari passu in right of payment in respect of the Average Life to Maturity Collateral and with the Obligations in respect of the Revolving Commitments and the Tranche B Term Loans, (ii) for purposes of prepayments, shall be treated the same as the Revolving Loans and (iii) shall have the same terms as the Revolving Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied including without limitation with respect to such TV/Radio Subsidiarypricing and maturity date).
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Such notice shall specify (w) the amount of such Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans Revolving Commitments shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply reasonably satisfactory to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by and the Administrative Agent in connection therewith(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. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no No Lender shall be obligated to provide any Incremental LoansLoans or Incremental Revolving Commitment, unless it so agrees. Any Person or Persons Commitments in respect of any Incremental Loans shall become an Commitments under this Agreement. An Incremental Lender hereunder upon execution and delivery Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall 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 this Section and Sections 5.02 and 5.03 4.03 (it being understood that all references to “the date of such Borrowing” or similar language in Section 5.02 4.03 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agreeFacility Closing Date). The Administrative Agent shall receive not less than 10 Business Days advance notice (or shorter, if agreed by the Administrative Agent) prior to any proposed Incremental Loans made pursuant to the same Facility Closing Date. The proceeds of any Incremental Loan Amendment shall Extensions of Credit will be deemed to be a separate series (each a “Series”) of Incremental Loans used only for all purposes of this Agreementgeneral corporate purposes.
Appears in 1 contract
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments in an amount not to exceed the Incremental Loan Amount from one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyLenders, the “Incremental Loans”)which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the aggregate amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall not exceed be no earlier than the Maturity Date, (ii) the average remaining life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans and (iii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (which shall be increased by any “LIBOR floor” applicable to such Other Loans, to the extent in excess of the “LIBOR floor” applicable to the LIBO Rate Loans then outstanding) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant average life to Section 7.01(m) plus maturity of such Other Loans and (B) additional amounts so long four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as both the “Yield Differential”) the Applicable Rate then in effect for LIBO Rate Loans (which, for such purpose only, shall be deemed to include fees received by the Lenders directly or indirectly from the Borrower or any Subsidiary (including any discount at which the time Loans were initially made) for making the Loans, then the Applicable Rate then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of any such request and the Other Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby. Each Incremental Loan Assumption Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the judgment of the Administrative Agent, to effect the provisions of this Section 2.20.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, (A) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects as of such date with respect the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) at the time of and immediately after giving effect to such Incremental Loan pursuant Commitment, no Default shall have occurred and be continuing and (C) after giving effect to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as making of any Incremental Loans and the use of the relevant determination date as if such Incremental Loans pursuant proceeds thereof, the Consolidated Secured Net Debt Ratio shall be less than 4.0 to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; 1.0 (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (shall have received a certificate to that effect dated such consent not to be unreasonably withheld); date and executed by a Financial Officer of the Borrower and (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided specified in Section 6.09(a)the applicable Incremental Loan Assumption Agreement, the Borrower Administrative Agent shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied have received (with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount sufficient copies for each of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date Lenders) legal opinions, board resolutions and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information closing certificates reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect and consistent with those delivered on the Closing Date under Article IV.
(d) Each of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding LIBO Rate Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan Amendment (in form reasonable satisfactory to each outstanding LIBO Rate Borrowing on a pro rata basis. Any conversion of LIBO Rate Loans to ABR Loans required by the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment preceding sentence shall be subject to Section 2.14. If any Incremental Loan is to be allocated to an existing Interest Period for a LIBO Rate Borrowing, then the satisfaction of each of interest rate thereon for such Interest Period and the conditions other economic consequences thereof shall be as set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer the applicable Incremental Loan Assumption Agreement. In addition, to the effective date extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.07(a) required to be made after the making of such Incremental Loan Amendment) and such other conditions as Loans shall be ratably increased by the parties to aggregate principal amount of such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementLoans.
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Incremental Loans. The (a) At any time prior to the Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided belowelect to request the establishment of up to two (2) incremental revolving credit commitments (any such incremental revolving credit commitment, request one or more Lenders (including Persons who shall become an “Incremental Lenders pursuant to this Section 2.01(c)Loan Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the an “Incremental LoansLoan”); provided that (i1) the total aggregate amount of for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed $40,000,000 and (A2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $400,000,000 10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Starter AmountLender”) less ). Any Lender or any Permitted Additional Indebtedness incurred pursuant Incremental Lender offered or approached to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness provide all or a portion of any Incremental Loan Amendment with respect Commitment may elect or decline, in its sole discretion, to an provide such Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis Commitment. Any Incremental Loan Commitment shall become effective as of the relevant determination date as if such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to any Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than Loan Commitment;
(x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (iiB) each Person which the Borrower shall request to make an Incremental Loan shall be a “Revolving Credit Loan” for all purposes hereof and shall be subject to the prior same terms and conditions as the Revolving Credit Loans and shall be guaranteed and secured with the other Extensions of Credit on a pari passu basis;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment);
(D) such Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent (such consent not Agent, to be unreasonably withheldeffect the provisions of this Section 4.13); and
(iiiE) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary deliver or cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such delivered any other information documents reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide with any such transaction.
(b) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Loan Commitment becomes effective, each Incremental Lender hereunder upon execution and delivery to the Administrative Agent of with an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment Commitment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties become a Lender hereunder with respect to such Incremental Loan Amendment Commitment. Thereafter it shall agreebe entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be Lenders will not constitute a separate series (each a “Series”) of Incremental Loans voting class for all any purposes of under this Agreement.
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Incremental Loans. The (a) At any time prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such increase, the an “Incremental LoansRevolving Credit Increase”); provided that (1) the total aggregate principal amount for all such Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $200,000,000.00; and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Revolving Credit Increase made thereunder) shall not be less than a minimum principal amount of $25,000,000.00 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is given to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitment, and (2) the aggregate amount making of any Incremental Loans Revolving Credit Increase pursuant thereto;
(ii) the Administrative Agent and the Lenders shall not exceed (A) $400,000,000 (have received from the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred Borrower an Officer’s Compliance Certificate, in form reasonably satisfactory to the Administrative Agent, demonstrating that the Borrower is in compliance with the financial covenants set forth in Section 8.10 based on the financial statements most recently delivered pursuant to Section 7.01(m7.1(a) plus or 7.1(b), as applicable, both before and after giving effect (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis determined as of the relevant determination date end of the period covered by such financial statements) to (1) any Incremental Revolving Credit Commitment, and (2) the making of any Incremental Revolving Credit Increase pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be fully funded);
(iii) each of the representations and warranties contained in Article VI shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty 4835-1758-6474.6 shall be true and correct in all respects) on such Increased Amount Date with the same effect as if made on and as of such date, except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects (except to the extent any such representation or warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation or warranty shall remain true and correct in all respects) as of such earlier date;
(iv) each Incremental Revolving Credit Commitment (and the Incremental Revolving Credit Increase made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(v) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(A) such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding Revolving Credit Increase shall mature on the most recent period of four consecutive fiscal quarters) Revolving Credit Maturity Date, shall not bear interest and be greater than (x) 3.50 entitled to 1.00 fees, in each case at any time during the period beginning on rate applicable to the Fifth Restatement Effective Date Revolving Credit Loans, and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent same terms and conditions as the Revolving Credit Loans;
(B) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such consent not Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to be unreasonably withheldmake all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment); and
(iiiC) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents except as provided above, all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of other terms and conditions applicable to such Incremental Loans may Revolving Credit Increase shall, except to the extent otherwise provided in this Section 4.15, be accelerated pursuant identical to Section 2.08(b)), the terms and conditions applicable to the Average Life to Maturity of the Revolving Credit Facility;
(vi) any Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Lender with an Incremental Loans Revolving Credit Increase shall be entitled to participatethe same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder;
(vii) such Incremental Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the extent provided in provisions of this Section 2.09(b), in mandatory prepayments4.15); and and
(vviii) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary deliver or cause the Collateral and Guarantee Requirement to be satisfied delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors 4835-1758-6474.6 (or equivalent governing body) of each Credit Party authorizing such Incremental Revolving Credit Increase) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
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Sources: Credit Agreement (Fastenal Co)
Incremental Loans. The (a) At any time until thirty (30) days prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase any such increase, an “Incremental Revolving Credit Increase” and the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyloan made thereunder, the “Incremental Loans”); provided that (i1) the total aggregate amount for all such Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $40,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not exceed be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) $400,000,000 no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the “making of any Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred Loans pursuant to Section 7.01(m) plus thereto;
(B) additional amounts so long as both at the time of any such request Administrative Agent and upon the effectiveness of any Incremental Loan Amendment with respect to Lenders shall have received from the Borrower an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Officer’s Compliance Certificate demonstrating that the First Lien Indebtedness Ratio (determined Borrower will be in compliance on a pro forma basis as with the financial covenants set forth in Section 8.15 (provided that the Consolidated Total Indebtedness to Consolidated Capitalization Ratio shall be less than 62.5%) both before and after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of the relevant determination date as if such any Incremental Loans pursuant to this Section 2.01(c)(i)(Bthereto, and assuming that all Incremental Loans under such Incremental Revolving Credit Increase have been made;
(C) had been outstanding on the most recent period proceeds of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for general corporate purposes of the remaining availability under the limits set forth in clause Borrower and its Subsidiaries;
(iD) above); each Incremental Revolving Credit Commitment (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of and the Incremental Loans made thereunder) shall constitute Obligations of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(E) in the case of each Incremental Revolving Credit Increase (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Incremental Loans. The Borrower may at any time or (a) Other than during the Covenant Relief Period, from time to time after during the Fifth Restatement Effective DateAvailability Period, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent as provided below(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Loan Commitments (any such increase, an “Incremental Revolving Loan Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving loans under the Revolving Loan Facility (any such increase, an “Incremental Revolving Loan Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the aggregate amount of Borrower may not request any Incremental Loan Commitments or Incremental Loans shall not exceed during the Covenant Relief Period and (Aii) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any each such request and upon the effectiveness of any each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(BAmendment, (A) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) no Default has occurred and is continuing or shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 result therefrom and (yB) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject have delivered a certificate of a Financial Officer to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits effect set forth in clause (iA) above); . Notwithstanding anything to the contrary herein, (iv1) except the total aggregate principal amount for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the all such Incremental Loan Maturity Date Commitments shall not (as of any date of incurrence thereof) exceed $100,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans of any Series made thereunder) shall not be earlier less than a minimum principal amount of $10,000,000 or, if less, the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated remaining amount permitted pursuant to the foregoing clause (1).
(b) Each notice from the Borrower pursuant to this Section 2.08(b))2.21 shall set forth the requested amount of the relevant Incremental Loan Commitment. Any additional bank, financial institution, existing Lender or other Person that elects to provide a portion of any Incremental Loan Commitment shall be reasonably satisfactory to the Borrower, the Administrative Agent, and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to Incremental Revolving Loan Commitments, each Swingline Lender and each Issuing Bank (any such TV/Radio Subsidiarybank, financial institution, existing Lender or other Person being called an “Incremental Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Such notice Each Incremental Loan Commitment shall specify be effected by an amendment (wan “Incremental Amendment”) to this Agreement and, as appropriate, the amount of other Loan Documents, executed by STX, the Borrower, such Incremental Loans Lender and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewithAgent. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no No Lender shall be obligated to provide any Incremental Loans. Any Person or Persons Loan Commitment, unless it so agrees.
(c) Commitments in respect of any (i) Incremental Revolving Loan Commitment shall become Revolving Commitments (or in the case of any Incremental Revolving Loan Commitment to be provided by an existing Lender, an increase in such Lender’s Revolving Commitment) under this Agreement and (ii) Incremental Lender hereunder upon execution Term Loan Commitment shall be a Term Loan Commitment (and delivery a separate facility under this Agreement). An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.21. The effectiveness of any Incremental Amendment shall, unless otherwise agreed to by the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Closing Date”) of each of the conditions set forth in this Section and Sections 5.02 and 5.03 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in Section 5.02 4.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agreeClosing Date). The proceeds of any Incremental Loans made pursuant to the same Incremental Loan Amendment shall Commitments will be used only for working capital and other general corporate purposes of the Borrower and its subsidiaries.
(d) Upon each Incremental Revolving Loan Increase pursuant to this Section 2.21, (i) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Lender, and each Incremental Lender will automatically and without further act be deemed to have assumed, a separate series portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Incremental Revolving Loan Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each a “Series”Lender (including each Incremental Lender) will equal such Lender’s Applicable Percentage and (ii) if, on the date of such Incremental Revolving Loan Increase, there are any Revolving Loans for all purposes outstanding, such Revolving Loans shall be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Incremental Revolving Loan Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this AgreementAgreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request one or more Lenders increases in the Revolving Credit Commitments, an “Incremental Revolving Credit Commitment”) to make incremental revolving credit loans (including Persons who shall become any such increase, an “Incremental Lenders Revolving Credit Increase” and, the loans made pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelysuch Incremental Revolving Credit Increase, the “Incremental Loans”); provided that (i1) the total aggregate amount of for all such Incremental Loans Revolving Credit Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $75,000,000 and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B(2) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such total aggregate amount for each Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) Revolving Credit Commitment shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Revolving Credit Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 fifteen (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i15) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madenotice is delivered to Administrative Agent. The Borrower may invite any Lender, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any Affiliate of the commitment feeany Lender and/or any Approved Fund, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) by no Default or Event of Default shall exist on such Person Increased Amount Date before or Persons, after giving effect to any Incremental Revolving Credit Commitment;
(B) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries;
(C) each Incremental Revolving Credit Commitment (and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to thereunder) shall constitute Obligations of the same Incremental Loan Amendment Borrower and shall be deemed to secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(D) in the case of each Incremental Revolving Credit Increase (the terms of which shall be a separate series (each a “Series”) of Incremental Loans for all purposes of this set forth the relevant Lender Joinder Agreement.):
Appears in 1 contract
Incremental Loans. The (a) At any time prior to the Maturity Date, the U.S. Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental revolving credit commitments (including Persons who shall become any such incremental revolving credit commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Loan Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the an “Incremental LoansLoan”); provided that (i1) the total aggregate amount of for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed $200,000,000 and (A2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $400,000,000 20,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the U.S. Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The U.S. Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lender and the Swingline Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Starter AmountLender”) less ). Any Lender or any Permitted Additional Indebtedness incurred pursuant Incremental Lender offered or approached to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness provide all or a portion of any Incremental Loan Amendment with respect Commitment may elect or decline, in its sole discretion, to an provide such Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis Commitment. Any Incremental Loan Commitment shall become effective as of the relevant determination date as if such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to any Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than Loan Commitment;
(x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (iiB) each Person which the Borrower shall request to make an Incremental Loan shall be a “Revolving Credit Loan” for all purposes hereof and shall be subject to the prior same terms and conditions as the Revolving Credit Loans and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(C) such Incremental Loan Commitments shall be effected pursuant to one or more agreements in form and substance satisfactory to the Administrative Agent and the U.S. Borrower executed and delivered by the U.S. Borrower, the Administrative Agent and the applicable Incremental Lenders (which agreement or agreements may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent Agent, to effect the provisions of this Section 4.14); and
(such consent not D) the U.S. Borrower shall deliver or cause to be unreasonably withheld); delivered any customary legal opinions or other documents (iii) each tranche including, without limitation, a resolution duly adopted by the board of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 directors (or such lesser amount that represents all equivalent governing body) of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the U.S. Borrower authorizing such Incremental Loan Maturity Date (for the avoidance of doubt, resolutions duly adopted by the board of directors (or equivalent governing body) of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated U.S. Borrower delivered pursuant to Section 2.08(b)), and the Average Life to Maturity 5.1(b)(ii) which authorize such Incremental Loan shall be sufficient so long as such resolutions are certified as of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided applicable Increased Amount Date as remaining in Section 2.09(b), in mandatory prepayments); full force and (veffect) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect with any such transaction.
(b) The outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Incremental Swingline Loans may not and L/C Obligations will be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to reallocated by the Administrative Agent of on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the U.S. Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment).
(c) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment Commitment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties become a Lender hereunder with respect to such Incremental Loan Amendment Commitment. Thereafter it shall agreebe entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be Lenders will not constitute a separate series (each a “Series”) of Incremental Loans voting class for all any purposes of under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Owens Corning)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders Incremental Term Loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to make an incremental term loan (xany such incremental term loan, an “Incremental Term Loan”); or
(ii) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder increases in the Revolving Credit Commitments (collectivelyan “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental Revolving Credit Loans (any Revolving Credit Loans made pursuant to such Incremental Revolving Credit Commitments, the “Incremental Revolving Credit Increase”, and together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the aggregate amount of for all such Incremental Loans Loan Commitments shall not exceed $200,000,000 and (A2) the aggregate amount for each Incremental Loan Commitment shall not be less than a minimum principal amount of $400,000,000 25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person that provides an Incremental Loan Commitment, an “Incremental Starter AmountLender”) less ). Any Lender or any Permitted Additional Indebtedness incurred pursuant Incremental Lender offered or approached to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness provide all or a portion of any Incremental Loan Amendment with respect Commitment may elect or decline, in its sole discretion, to an provide such Incremental Loan pursuant Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to this Section 2.01(c)(i)(B(1) any Incremental Loan Commitment and (2) the First Lien Indebtedness Ratio making of any Incremental Loans pursuant thereto;
(determined B) the Borrower shall have delivered to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma basis as with the financial covenants set forth in Section 9.15 after giving effect to (1) any Incremental Loan Commitment (and assuming that the Revolving Credit Commitments (including any Incremental Revolving Credit Commitments) are fully drawn), (2) the making of the relevant determination date as if such any Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 thereto and (y3) 3.25 to 1.00 thereafter; any Permitted Acquisition or other contemplated use of proceeds consummated in connection therewith;
(iiC) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent proceeds of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of any Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for ongoing working capital requirements and other general corporate purposes of the remaining availability under the limits set forth in clause Borrower and its Restricted Subsidiaries (iincluding Permitted Acquisitions);
(D) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the each Incremental Loan Maturity Date of Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(1) in the case of each Incremental Term Loan (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Sources: Credit Agreement (CST Brands, Inc.)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time after the Restatement Effective Date, request (x) Incremental Term Loan Commitments from one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount Lenders, all of their Term Loans and/or which must be Eligible Assignees and (y) establish Incremental Revolving Credit Commitments from one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”)Revolving Lenders; provided that (i) the aggregate amount of Incremental Term Loans and/or Incremental Revolving Credit Commitments so requested by the Borrower shall not exceed (Ai) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) Loans Amount plus (Bii) an additional amounts so long as both amount if, at the time of any (and after giving pro forma effect at such request time to the incurrence of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and the application of proceeds therefrom, the Senior Secured Net Leverage Ratio is equal to or less than 3.75 to 1.00 (assuming all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were secured by the Borrower on a first lien basis, whether or not so secured, and all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were fully drawn on such date, whether or not so drawn). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Loan Lenders in connection therewith. The Borrower and each Incremental Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Loan Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to this Section 2.01(c)(i)(Bevidence such amendments (without the consent of any other Lender); provided that:
(i) the First Lien Indebtedness Ratio (determined on a pro forma basis Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the relevant determination date as if such Incremental Revolving Credit Commitments and Incremental Revolving Loans pursuant shall be identical to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during Revolving Credit Commitments and the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; Revolving Loans;
(ii) each Person the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except, in the case of Other Term Loans, as to maturity, interest rates, fees, amortization and call protection (which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and following clauses (v) through (z)) and except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable agreed by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that unless otherwise agreed by the effectiveness Required Lenders, (v) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (w) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, (x) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such Incremental Loan Amendment excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (y) the Other Term Loans shall benefit from the same Guarantees as those of the Term Loans and (z) the ranking of the Other Term Loans shall, as determined by the Borrower (1) rank pari passu or junior with the Credit Facilities in right of payment and (2) be unsecured or secured by the Collateral on a pari passu or junior basis with the Credit Facilities (and, to the extent subordinated in right of payment or security to the Credit Facilities, shall be subject to entry into a customary intercreditor arrangements in form and substance reasonably satisfactory to the satisfaction Administrative Agent and Borrower); and
(iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Credit Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrower shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied; provided that in the case of any Incremental Loan Commitments incurred in connection with a Limited Condition Acquisition, such conditions pursuant to this clause (i) shall be limited to the absence of an Event of Default under Section 7.01(a), (f) or (g) and Sections 5.02 the accuracy of customary “specified representations”, and 5.03 (it being understood ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Restatement Effective Date under Section 4.03.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all references Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to “be converted into an ABR Borrowing on the date of such Borrowing” each Incremental Loan, or similar language in Section 5.02 by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be deemed subject to refer Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the effective date extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Loan Amendment) and such other conditions as Term Loans shall be ratably increased by the parties to aggregate principal amount of such Incremental Loan Amendment Term Loans and shall agree. be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(e) The Incremental Loans made and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the same benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Amendment Assumption Agreement applicable thereto. The Loan Parties shall be deemed take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be a separate series (each a “Series”) perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans for all purposes of this Agreementor any such new Incremental Loan Commitments.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Advanced Disposal Services, Inc.)
Incremental Loans. The Borrower may In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a) and (b) above, at any time or and from time to time after time, the Fifth Restatement Effective Date, Company (and a Subsidiary designated by written notice the Company in accordance with the requirements of Section 5.02(b) or Section 5.02(c)) may request that the Lenders (or other financial institutions agreed to by the Company and the Administrative Agent) offer to enter into commitments to make additional term loans (each such loan being herein called an “Incremental Loan”) under this paragraph (c) to the Administrative Agent Company (or, as provided belowapplicable, request such Subsidiary Borrower). In the event that one or more of the Lenders (or such other financial institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Company agree as to the amount of such commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Company in connection therewith, such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments (and such financial institutions shall become “Incremental Loan Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Company (or, as applicable, the respective Subsidiary Borrower) and one or more Lenders (including Persons who shall become Incremental Lenders pursuant any such new Lenders) in response to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment Company shall be deemed to be a separate series (each a “Series”) ” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $50,000,000 (except that in the case of Incremental Loan Commitments made available to a Subsidiary Borrower, such minimum aggregate principal amount shall be $5,000,000), (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000 (excluding (i) the $37,000,000 of Series A Incremental Loans, (ii) the $150,000,000 of Series B Incremental Loans, (iii) the $20,000,000 of Series C Incremental Loans, (iv) the $7,000,000 of Series D Incremental Loans, (v) the $250,000,000 of Series E Incremental Loans, (vi) the $325,000,000 of Series F Incremental Loans and (vii) the $43,000,000 of additional Incremental Loans that may be made to Subsidiary Borrowers), and (iii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans to all Subsidiary Borrowers shall not exceed $107,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, amortization schedule and maturity date as shall be agreed upon by the Lenders in respect thereof and the Company (or, in the case of Incremental Loans to a Subsidiary Borrower, such Subsidiary Borrower). Following the acceptance by the Company of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (c), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Company or the respective Subsidiary Borrower, as applicable, during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Company or the respective Subsidiary Borrower, as applicable, may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid may not be reborrowed as Incremental Loans of the same Series. Proceeds of Incremental Loans shall be available for any use permitted under the applicable provisions of Section 6.09.”
Appears in 1 contract
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the Administrative Agent as provided below(or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Facility”) to (x) provide additional Term Loans or increase denominated, at the amount option of their Term Loans such Borrower, in Dollars, Euros and/or (y) establish any Alternative Currency, and consisting of one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”); provided that , or a combination thereof, so long as (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (or to the extent the proceeds of any Incremental Loans shall not exceed (Aare being used to finance a Permitted Acquisition or other permitted Investment, no Event of Default under Section 7.01(a), 7.01(b), 7.01(h) $400,000,000 (the “Incremental Starter Amount”or 7.01(i) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both has occurred and is continuing at the time of any execution of a binding agreement in respect of such request Acquisition or Investment and upon subject to customary “SunGard” limitations), and (ii) subject to the effectiveness provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the establishment of such Incremental Facility (or, at the option of the Borrower, (x) in the case of any Incremental Loan Amendment with respect Commitment established and not funded at such time, at the time of the initial funding of such Incremental Facility in lieu of the time at the time of such Incremental Facility Amendment) and/or (y) after giving effect to any acquisition or investment consummated or contemplated pursuant to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) agreement in connection herewith, the First Lien Indebtedness Leverage Ratio (determined computed on a pro forma basis as of the relevant determination date as if Pro Forma Basis (but without giving effect to any Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes established and/or funded at such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarterstime) shall not be greater than 3.50:1.00 (such indebtedness, “Incurrence Incremental First Lien Indebtedness”) (assuming, solely for purposes of this Section 2.20 at the time of entering into such Incremental Facility Amendment or funding of such Incremental Facility, as applicable, as elected by the Borrower, and not for any other provision hereunder, that (I) all Incremental Facilities and all Additional Term Notes, in each case established and/or issued on or prior to such time are secured on a first Lien basis, whether or not so secured, (II) all Incremental Revolving Facilities and Incremental Term Facilities consisting of delayed draw term loans established but not funded at such time are fully drawn and (III) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “First Lien Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect); provided further that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Effective Date not to exceed an amount equal to the sum of (x) 3.50 to 1.00 at any time during the period beginning Dollar Equivalent (calculated using the Exchange Rate on the Fifth Restatement date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $750,000,000 less any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(1) or in reliance on clause (x) of the definition of Unrestricted Incremental First Lien Indebtedness in the Seattle Credit Agreement (provided that the maximum amount deducted pursuant to this clause (x) shall not exceed $750,000,000) plus (y) the amount of any voluntary prepayments (or repurchases) of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date and ending the amount of any voluntary prepayments (or repurchases) of the Seattle Term Loans, First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on December 31a pari passu basis with the Liens securing the Obligations effected after the Effective Date (minus any amounts incurred in reliance on Section 6.01(a)(xxxii)(a)(2) or in reliance on clause (y) of the definition of “Unrestricted Incremental First Lien Indebtedness” in the Seattle Credit Agreement) (other than, 2014 in each case, any such prepayments or repurchases financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) (such Indebtedness in clauses (x) and (y), collectively, the “Unrestricted Incremental First Lien Indebtedness”) 3.25 to 1.00 thereafter; (iiit being understood and agreed that unless notified by the Borrower (I) each Person which the Borrower shall request be deemed to make an have utilized amounts of the type described in clause (y) of the Unrestricted Incremental Loan First Lien Indebtedness prior to the utilization of amounts under clause (x) of the Unrestricted Incremental First Lien Indebtedness and Incurrence Incremental First Lien Indebtedness, and the Borrower shall be subject deemed to have used Incurrence Incremental First Lien Indebtedness, (to the extent compliant therewith) prior consent to utilization of amounts of the Administrative Agent type described in clause (x) of the Unrestricted Incremental First Lien Indebtedness (it being understood and agreed that amounts incurred concurrently with the incurrence of Unrestricted Incremental First Lien Indebtedness or Unrestricted Additional Term Notes shall be permitted to exceed 3.50:1.00), (II) Loans may be incurred in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, and the proceeds from any such consent not incurrence in respect of both Incurrence Incremental First Lien Indebtedness and Unrestricted Incremental First Lien Indebtedness, may be utilized in a single transaction by first calculating the incurrence in respect of Incurrence Incremental First Lien Indebtedness above and then calculating the incurrence in respect of Unrestricted Incremental First Lien Indebtedness and (III) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness as Incurrence Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrowers’ ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) in respect of Unrestricted Incremental First Lien Indebtedness. Each Incremental Facility shall be unreasonably withheld); in an integral multiple of $1,000,000 (iii) each tranche or, in the case of Incremental Loans shall Facilities denominated in Euros, €1,000,000) and be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (or, in the case of Incremental Facilities denominated in Euros, €25,000,000), provided that such amount may be less than $25,000,000 (or €25,000,000, as the case may be) if such lesser amount that represents all of the remaining availability under the limits aggregate principal amount of Incremental Facilities set forth in clause above.
(b) Each Incremental Term Facility (i) above)if made a part of an existing Class of Term Loans, shall have terms identical to those applicable to such Class of Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (ivA) except such Incremental Term Facility shall rank pari passu or junior in right of payment and/or security with the Term Loans hereunder or be unsecured, and if junior in right of payment and/or security or is unsecured, shall be established as a separate facility than the facility for Incremental the Term Loans requested under clause secured with the Collateral securing the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) if secured, the obligations in respect thereof shall not be secured by Liens on the assets of the Parent and the Restricted Subsidiaries, other than assets constituting Collateral, as applicable, and if established as a separate facility, shall be subject to (x) above if such Term Loans are secured on a pari passu basis with the Obligations, the Senior Representative for such Term Loans shall enter into the Pari Passu Intercreditor Agreement or other customary intercreditor agreement and (y) if such Term Loans are secured on a junior basis to the Obligations, the Senior Representative for such Term Loans shall enter into a Second Lien Intercreditor Agreement or other customary intercreditor agreement, in each case with the Administrative Agent’s and/or Collateral Agent substantially consistent with the terms set forth on Exhibit K-1 or K-2 annexed hereto together with (I) any immaterial changes and (II) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are Tranche A pari passu with, or junior in priority to, other Liens that are junior to the Liens securing the Obligations), (D) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Term Loans; provided that this clause (D) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans having a final maturity date that is prior to the Incremental Loan Latest Maturity Date with respect to the Initial Term Loans so long as such final maturity date is at least five years from the date of the such issuance or incurrence, (E) no Incremental Loans of any Series Term Facility shall not be earlier have a Weighted Average Life to Maturity that is shorter than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of such Class of Term Loans); provided that this clause (E) shall not restrict the issuance or incurrence by the Parent or any of its Restricted Subsidiaries after the Effective Date of up to $1,700,000,000 aggregate principal amount of Additional Debt, Additional Term Notes, Unrestricted Additional Term Notes, Incremental Term Loans, Seattle Additional Debt, Seattle Additional Term Notes, Seattle Unrestricted Additional Term Notes and Seattle Incremental Term Loans shall be greater having Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Tranche B Initial Term Loans (except that Incremental Loans without giving effect to amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) so long as such debt does not require annual amortization or similar regularly scheduled prepayments in excess of 10% of the original amount of such debt at issuance or incurrence in any year, (F) for purposes of mandatory prepayments, shall be entitled treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to participateInitial Term Loans, (G) the pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that solely in the event that the Yield for any Incremental Term Loans secured on a pari passu basis with the Initial Term Loans (other than (i) Incremental Term Loans incurred in reliance on clause (y) of the definition of Unrestricted Incremental First Lien Indebtedness (except if the capacity under clause (y) results from prepayments made with the proceeds of indebtedness which is pari passu in right of payment and security with the Term Loans (other than the Revolving Loans)) and (ii) any Additional Term Notes) is higher than the Yield for the Tranche B-3 Term Loans, Tranche B-4 Term Loans, Euro Tranche Term Loans and Euro Tranche B-1 Term Loans by more than 50 basis points in the case such applicable Class of Initial Term Loans, then the Applicable Margin for the Tranche B-3 Term Loans, Tranche B-4 Term Loans, Euro Tranche Term Loans or Euro Tranche B-1 Term Loans, as applicable, shall be increased to the extent necessary so that the Yield for such Classes of Term Loans is equal to the Yield for such Incremental Term Loans minus 50 basis points, and (H) other terms may differ and shall be determined by the Borrower and the lenders providing such Incremental Term Loans; provided, however, the covenants and events of default of such Incremental Term Loans, if not consistent with the terms of the Initial Term Loans, shall not be materially more restrictive to the Borrower (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Initial Term Loans unless (x) the Lenders of the Initial Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of an existing tranche of Revolving Commitments shall have terms identical to those applicable to such Class of Revolving Commitments or (ii) if consisting of an additional Class of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to the Initial Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Facility and, to the extent provided in such consent would be required for an assignment of such Loans or Commitments pursuant to Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)9.04, the Borrower shall within 30 days after Issuing Bank and the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement Swingline Lender (such consent not to be satisfied with respect unreasonably withheld, delayed or conditioned) (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 Parent, Holdco, the Borrower, such TV/Radio Subsidiary. Such notice shall specify Additional Lender (w) in the amount case of such Incremental Loans and the Person or Persons to provide such Incremental Loansthis Agreement and, (x) the date on which such Incremental Loans shall be madeas appropriate, (y) the Incremental any other Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if Document, as applicable) (and to the rate extent it directly and adversely affects the rights or duties of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to and/or the contraryCollateral Agent, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to and/or the Administrative Collateral Agent) by such Person or Persons, the Borrower and the Administrative Agentas applicable); provided that in the effectiveness of such event an Incremental Loan Facility Amendment shall be subject to is effected without the satisfaction of each consent of the conditions set forth in this Section Administrative Agent and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to which the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Administrative Agent is
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Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders new term loans (including Persons who the “New Term Loan Commitments”) or the increase of the Dollar Revolving Commitments hereunder, in an aggregate amount for all such New Term Loan Commitments and increases of the Dollar Revolving Commitments not in excess of (i) $150,000,000 (each such establishment or increase, a “Cash-Capped Incremental Facility”) plus (ii) up to an additional amount (each such establishment or increase, a “Ratio-Based Incremental Facility”) if the pro forma Consolidated Total Leverage Ratio is less than 2.75:1.00 (and, for the avoidance of doubt, for any Ratio-Based Incremental Facility, such Consolidated Total Leverage Ratio shall become Incremental Lenders be calculated as though any Dollar Revolving Commitments to be incurred pursuant to this Section 2.01(c2.25 were fully drawn), as of the end of the most recently ended Test Period. Each such notice shall specify the date (each, an “Increased Amount Date”) to (x) provide additional on which the Borrower proposes that the New Term Loans Loan Commitments or increase of the Dollar Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent; provided that (i) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments or increase of the Dollar Revolving Commitments may elect or decline, in its sole discretion, to provide such New Term Loan Commitments or increase of the Dollar Revolving Commitments and (ii) any New Term Loan Commitments or increases to the Dollar Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of their the Consolidated Total Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility).
(b) Such New Term Loans and/or (y) establish one Loan Commitments or more additional tranches increase of term loans hereunder (collectively, the “Incremental Loans”)Dollar Revolving Commitments shall become effective as of such Increased Amount Date; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (conditions set forth in Section 5.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such New Term Loan Commitments and to the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time making of any Tranche of New Term Loans pursuant thereto or to such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as increase of the relevant determination date as if such Incremental Loans pursuant Dollar Revolving Commitments and after giving effect to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereaftertransaction consummated in connection therewith; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to in pro forma compliance with the prior consent financial covenants set forth in Section 7.1 as of the Administrative Agent (such consent not to be unreasonably withheld)end of the most recently ended Test Period; (iii) each tranche the proceeds of Incremental any New Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for general corporate purposes of the remaining availability Borrower and its Subsidiaries (including Permitted Acquisitions and Investments permitted under the limits set forth in clause (i) aboveSection 7.8); (iv) except for Incremental the New Term Loans requested shall share ratably in the Collateral and shall benefit ratably from the guarantees under clause the Guarantee and Collateral Agreement; (xv) above that are Tranche A the New Term Loans shall share ratably in any mandatory prepayments of the existing Term Loans, ; (vi) the Incremental Loan Maturity Date maturity date of the Incremental New Term Loans of any Series thereof shall not be earlier than the Tranche B Term Loan Maturity Date (except that and the scheduled final weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of such Incremental the Term Loans; (vii) all terms and documentation with respect to any New Term Loans may be accelerated pursuant which differ from those with respect to Section 2.08(b)), and the Average Life to Maturity of the Incremental Term Loans shall be greater than reasonably satisfactory to the Average Life to Maturity of the Tranche B Term Loans Administrative Agent (except that Incremental Loans shall be entitled to participate, to the extent provided in permitted by clause (vi) of this Section 2.09(band the last sentence of this paragraph); (viii) such New Term Loans or New Term Loan Commitments or increase of the Dollar Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, in mandatory prepayments)the Administrative Agent and one or more New Lenders; and (vix) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary deliver or cause the Collateral and Guarantee Requirement to be satisfied delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with respect any such transaction, including any supplements or amendments to the Security Documents providing for such TV/Radio SubsidiaryNew Term Loans to be secured thereby. Such notice shall specify (w) Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the amount of such Incremental Term Loans and the Person or Persons to provide such Incremental Loans, (x) outstanding on the date on which such Incremental New Term Loans are made shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions designated as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series tranche (each a “SeriesTranche”) of Incremental Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable lenders of New Term Loans (each, a “New Term Lender”) and shall be set forth in the applicable Joinder Agreement.
(c) On any Increased Amount Date on which any New Term Loan Commitments or increase of the Dollar Revolving Commitments becomes effective, subject to the foregoing terms and conditions, each lender with a New Term Loan Commitment or an increase of the Dollar Revolving Commitments (each, a “New Lender”) shall become a Lender hereunder with respect to such New Term Loan Commitment or such increase of the Dollar Revolving Commitments, as the case may be.
(d) The terms and provisions of the New Term Loan Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any New Term Loans or New Term Loan Commitments shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.25.
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Incremental Loans. The Borrower may In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a) and (b) above, at any time or and from time to time after time, the Fifth Restatement Effective Date, Company (and a Subsidiary designated by written notice the Company in accordance with the requirements of Section 5.02(b) or Section 5.02(c)) may request that the Lenders (or other financial institutions agreed to by the Company and the Administrative Agent) offer to enter into commitments to make additional term loans (each such loan being herein called an “Incremental Loan”) under this paragraph (c) to the Administrative Agent Company (or, as provided belowapplicable, request such Subsidiary Borrower). In the event that one or more of the Lenders (or such other financial institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Company agree as to the amount of such commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Company in connection therewith, such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments (and such financial institutions shall become “Incremental Loan Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Company (or, as applicable, the respective Subsidiary Borrower) and one or more Lenders (including Persons who shall become Incremental Lenders pursuant any such new Lenders) in response to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment Company shall be deemed to be a separate series (each a “Series”) ” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $50,000,000 (except that in the case of Incremental Loan Commitments made available to a Subsidiary Borrower, such minimum aggregate principal amount shall be $5,000,000), (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000 (excluding the $37,000,000 of Series A Incremental Loans and the $70,000,000 of additional Incremental Loans that may be made to Subsidiary Borrowers and excluding also the $150,000,000 of Series B Incremental Loans), and (iii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans to all Subsidiary Borrowers shall not exceed $107,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, amortization schedule and maturity date as shall be agreed upon by the Lenders in respect thereof and the Company (or, in the case of Incremental Loans to a Subsidiary Borrower, such Subsidiary Borrower). Following the acceptance by the Company of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (c), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Company or the respective Subsidiary Borrower, as applicable, during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Company or the respective Subsidiary Borrower, as applicable, may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid may not be reborrowed as Incremental Loans of the same Series. Proceeds of Incremental Loans shall be available for any use permitted under the applicable provisions of Section 6.09.”
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Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (i1) after giving effect to any such Incremental Loans, the aggregate Revolving Commitments plus the aggregate principal amount of all Initial Term Loans and Incremental Term Loans outstanding as of such date shall not (as of any date of incurrence thereof) exceed $250,000,000 and
(1) the total aggregate amount of for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madenotice is delivered to Administrative Agent. The Borrower may invite any Lender, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any Affiliate of the commitment feeany Lender and/or any Approved Fund, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) by no Default or Event of Default shall exist on such Person Increased Amount Date before or Personsafter giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent; provided , that the effectiveness of such Incremental Loan Amendment shall be subject to Borrower is in compliance with the satisfaction of each of the conditions financial covenants set forth in this Section 9.14 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and Sections 5.02 and 5.03 after giving effect (it being understood that all references on a Pro Forma Basis) to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such (x) any Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Commitment,
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Sources: Credit Agreement (Fidelity National Financial, Inc.)
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Fourth Amendment Effective Date, the applicable Borrowers may by written notice from the Borrowing Agent to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to increase the maximum principal amount of revolving credit loans permitted hereunder (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed Twenty Million and 00/100 Dollars ($20,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of Five Million and 00/100 Dollars (x$5,000,000) 3.50 or, if less, the remaining amount permitted pursuant to 1.00 at any time during the period beginning foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an applicable Borrowers propose that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans notice is delivered to Administrative Agent. The Borrowers shall be madeinvite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by , to provide an Incremental Loan Commitment (any such Person or PersonsPerson, the Borrower and the Administrative Agentan “Incremental Lender”); provided that the effectiveness Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (including any existing Lender) providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Amendment Commitment. Any Incremental Loan Commitment shall be become effective as of such Increased Amount Date; provided that:
(A) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrowing Agent on behalf of the applicable Borrowers a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Loan Parties are in compliance with the financial covenants specified in Sections 9.2.13 [Minimum Consolidated Fixed Charge Coverage Ratio] and 9.2.14 [Maximum Leverage Ratio] (subject to any additional conditions imposed by Section 9.2.6 [Liquidations, Mergers, Consolidations, Acquisitions] in connection with any Permitted Acquisition), in each case based on the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made financial statements most recently delivered pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementSection 9.3.1 [Quarterly Financial Statements] or 9.
Appears in 1 contract
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Effective Closing Date, the Borrower may, by written notice to the Administrative Agent as provided belowAgent, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the total aggregate principal amount of for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) 100,000,000 plus (B) an unlimited additional amounts amount so long as both at as, in the time case of this clause (B), the Borrower has a Consolidated Net Secured Leverage Ratio that does not exceed 3.50 to 1.00, after giving effect (on a Pro Forma Basis) to (x) any such request and upon Incremental Loan Commitment, (y) the effectiveness making of any Incremental Loan Amendment with respect to an Loans pursuant thereto (assuming the full draw of all such Incremental Loan pursuant to this Section 2.01(c)(i)(BCommitments, but disregarding any proceeds thereof in calculating the numerator of the Consolidated Net Leverage Ratio), and (z) any Permitted Acquisition consummated in connection therewith or other use of the proceeds thereof and (ii) the First Lien Indebtedness Ratio total aggregate amount for each Incremental Loan Commitment (determined on a pro forma basis as of and the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to the Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Agent and the Lenders shall be madehave received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that the Borrower has a Consolidated Net Leverage Ratio that does not exceed 5.25 to 1.00 and, in the case of an incurrence under clause (i)(B) above, a Consolidated Net Secured Leverage Ratio that does not exceed 3.50 to 1.00, in each case, after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (assuming the full draw of all such Incremental Loan Maturity Date and Commitments, but disregarding any proceeds thereof in calculating the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans numerator of the Consolidated Net Leverage Ratio), and (z) any Permitted Acquisition consummated in connection therewith or other use of the Applicable Margin proceeds thereof;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that will apply to by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided, solely in the case of any Incremental Loans the proceeds of which are intended to and (if applicable) the rate of the commitment feeshall be used to finance substantially contemporaneously a Limited Condition Acquisition, if any, payable by the Borrower and notwithstanding anything in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein Section 6.2 to the contrary, the Persons providing such Incremental Loans may agree to a “Funds Certain Provision” that (A) does not impose as a condition to the funding thereof that no Lender Default or Event of Default exists at the time such Permitted Acquisition or such Investment is consummated, in which event, the condition may be that no Default or Event of Default shall exist on the date on which the definitive acquisition agreement with respect to such Permitted Acquisition or such Investment is executed and delivered by the parties thereto, (B) provides that the ratios required to be tested may be tested on the date on which the acquisition agreement therefor is executed and delivered by the parties thereto, and (C) does not impose as a condition to the funding thereof that all representations and warranties contained herein and in the other Loan Documents shall be obligated true and correct in all material respects on and as of that Funding Date, in which event, the condition may be that only (x) the representations made by or on behalf of the Persons and assets to provide be acquired in the applicable acquisition agreement as are material to the interests of the Lenders are required to be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to decline to consummate such acquisition as a result of a breach or inaccuracy of such representations in the applicable acquisition agreement, and (y) the Specified Representations referenced in clause (b) of the definition thereof are required to be true and correct in all material respects;
(D) the proceeds of any Incremental Loans. Any Person Loans shall be used as set forth in Section 8.15;
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Credit Agreement Obligations and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) (1) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(I) such Incremental Term Loan will mature and amortize in a manner agreed by the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or Persons a maturity date earlier than the Term Loan Maturity Date;
(II) the All-In Yield for such Incremental Term Loan shall become an be determined by the applicable Incremental Lender hereunder upon execution Lenders and delivery the Borrower on the applicable Increased Amount Date; provided that if the All-In Yield in respect of any Incremental Term Loan exceeds the All-In Yield for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the All-In Yield in respect of such Initial Term Loan is equal to the Administrative Agent of an All-In Yield for the Incremental Term Loan Amendment minus 0.50%; and
(in form reasonable III) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent) by such Person or Persons, Agent and the Borrower and the Administrative Agent; (provided that the effectiveness of such Incremental Loan Amendment other terms and conditions, taken as a whole, shall not be subject materially more favorable to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Lenders under any Incremental Loan Amendment) and Term Loans than such other conditions terms and conditions, taken as a whole, under the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Initial Term Loans);
Appears in 1 contract
Sources: Credit Agreement (KMG Chemicals Inc)
Incremental Loans. The Borrower may In addition to Borrowings of Syndicated Revolving Credit Loans pursuant to paragraph (a) above, at any time or and from time to time after time, the Fifth Restatement Effective DateCompany may request that the Lenders or, at the option of the Borrowers, other financial institutions or funds selected by written notice the Borrowers and consented to by the Administrative Agent as provided below, request (which agrees not to withhold such consent unreasonably) offer to enter into commitments to make additional revolving Incremental Loans in Dollars and other Currencies under this paragraph (b) to the Borrowers. In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Borrowers agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (including Persons who if any) to be payable by the Borrowers in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Lenders pursuant Loans under this Agreement in an amount equal to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or respective Incremental Loan Commitments (y) establish one or more additional tranches of term loans hereunder (collectively, the and such financial institutions shall become “Incremental Loans”Loan Lenders” hereunder); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans to be made pursuant to any such agreement between the same Incremental Loan Amendment Borrowers in response to any such request by the Company shall be deemed to be a separate series (each a “Series”) ” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans, together with any increase of Revolving Credit Commitments pursuant to Section 2.08(e) and increase in Synthetic LC Funding Amounts pursuant to Section 3.08(e), shall not exceed $100,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation and other fees, commitment reduction schedule (if any) and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Loan Lenders of such Series and the Borrowers, provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Obligation and (ii) the maturity or commitment termination date for any Incremental Loans shall not be earlier than the Commitment Termination Date and may be later than the Commitment Termination Date to the extent so agreed by the Borrowers and such Incremental Loan Lenders. Following the acceptance by the Borrowers of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (b), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrowers during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrowers may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.07) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.07).
Appears in 1 contract
Incremental Loans. (a) The Borrower may at any time or Borrowers may, by written notice delivered to the Administrative Agent from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request on one or more Lenders (including Persons who shall become occasions after the Third Restatement Date, request Incremental Lenders pursuant to this Section 2.01(c)) Commitments in an aggregate principal amount for all such Incremental Commitments of up to (xi) provide additional Term the greater of $50,000,000 and 100% of Consolidated EBITDA of the last day of the most recently ended Test Period (which shall not be reduced by any amount incurred in reliance on the Ratio Incremental Amount, the “Fixed Incremental Amount”), plus (ii) an unlimited amount, so long as in the case of this clause (ii), after giving effect to such Incremental Loans (and assuming in the case of any Incremental Revolving Credit Commitments, that such Incremental Revolving Loans have been fully drawn) and the use of proceeds thereof, the First Lien Net Leverage Ratio calculated on a Pro Forma Basis shall be equal to or increase less than 4.00 to 1.00 (the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively“Ratio Incremental Amount” and, together with the Fixed Incremental Amount, the “Incremental LoansLoan Amount”); provided that (i) the aggregate amount Borrowers may elect to use the Ratio Incremental Amount prior to the Fixed Incremental Amount, and if both of the Fixed Incremental Loans shall Amount and the Ratio Incremental Amount are available and the Borrowers do not exceed (A) $400,000,000 (make an election, the “Borrowers will be deemed to have elected the Ratio Incremental Starter Amount”) less any Permitted Additional ; provided, further, that if the Borrowers incur Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to under an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment using the Fixed Incremental Amount on the same date that it incurs Indebtedness using the Ratio Incremental Amount, the First Lien Net Leverage Ratio will be calculated without regard to any incurrence of Indebtedness Ratio (determined under the Fixed Incremental Amount. It is understood and agreed that if the applicable incurrence test is satisfied on a pro forma basis as of the relevant determination date as if Pro Forma Basis after giving effect to any Incremental Commitments or Incremental Equivalent Debt in lieu thereof, such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on Facility or Incremental Equivalent Debt, as applicable, may be incurred under the most recent period Ratio Incremental Amount regardless of four consecutive fiscal quarters) whether there is capacity under the Fixed Incremental Amount. Such notice shall not be greater than set forth (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent amount of the Administrative Agent Incremental Commitments being requested (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans which shall be in an aggregate principal minimum increments of $1,000,000 and a minimum amount that is not less than of $10,000,000 (5,000,000 or such lesser amount that represents all of equal to the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)Amount), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (xy) the date on which such Incremental Loans Loan Commitments are requested to become effective (which shall not be madeless than 5 Business Days nor more than 60 days after the date of such notice, (yunless the Administrative Agent shall otherwise agree) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to whether such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment Commitments are commitments to make such additional Term Loans, additional Revolving Loans or term loans or revolving loans with terms different from the Loans (loans with different terms from the Loans being referred to herein as “Specified Incremental Loans” and such commitments, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an “Specified Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsCommitments”), the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementapplicable.
Appears in 1 contract
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments when combined with the aggregate outstanding principal amount of Incremental Loans Additional Pari Passu Debt shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon date of incurrence thereof) exceed $250,000,000 or, if greater, an amount equal to the effectiveness principal amount of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) additional Indebtedness that would cause the First Lien Indebtedness Consolidated Total Net Leverage Ratio (determined on a pro forma basis as of the relevant determination date as if four (4) consecutive fiscal quarter period most recently ended prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 2.50 to 1.00 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $100,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x1). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall be madehave received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and Commitment being deemed to be fully funded but without netting the cash proceeds received in connection with any Incremental Loan Principal Payment Dates (if anyCommitment) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent any Permitted Acquisition consummated in connection therewith. Amounts prepaid ;
(C) each of the representations and warranties contained in respect Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person used for working capital or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent general corporate purposes of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Amendment Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(F) (1) in the case of each Incremental Term Loan (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments when combined with the aggregate outstanding principal amount of Additional Pari Passu Debt shall not (as of any date of incurrence thereof) exceed $250,000,000 or, if greater, an amount equal to the principal amount of additional Indebtedness that would cause the Consolidated Total Net Leverage Ratio as of the four (4) consecutive fiscal quarter period most recently ended prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 3.25 to 1.00 and (2) the total aggregate amount of for each Incremental Loan Commitment and the Incremental Loans made thereunder shall not exceed be less than a minimum principal amount of $100,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (A) $400,000,000 1). Each such notice shall specify the date (the each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at on which the time of any such request and upon the effectiveness of Borrower proposes that any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall be madehave received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and Commitment being deemed to be fully funded but without netting the cash proceeds received in connection with any Incremental Loan Principal Payment Dates (if anyCommitment) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for working capital or general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) (1) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(A) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a maturity date earlier than the maturity date with respect to any other Incremental Term Loan;
(B) the Applicable Margin that will apply to and pricing grid, if applicable, for such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable Term Loan shall be determined by the applicable Incremental Lenders and the Borrower in respect of on the commitment applicable Increased Amount Date; and
(C) except as provided above, all other terms and conditions applicable to make such any Incremental LoansTerm Loan, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contraryextent not materially consistent with the terms and conditions applicable to any other Incremental Term Loan, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery reasonably satisfactory to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Borrower;
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Incremental Loans. The Borrower may Subject to the terms and conditions set forth herein, the Borrowers shall have the right, at any time or and from time to time after (but not to exceed three (3) increases in the Fifth Restatement Effective aggregate) prior to the date that is eighteen months following the Closing Date, by written notice to incur additional Indebtedness under this Agreement in the form of an increase to the Administrative Agent as provided below, request Commitments of the Lenders hereunder or one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional new tranches of term loans hereunder (collectively, the each an “Incremental LoansFacility”); provided that ) by an aggregate amount of up to $25,000,000. The following terms and conditions shall apply to each Incremental Facility: (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of loans made under any such request Incremental Facility shall constitute Obligations and upon shall be secured and guaranteed with the effectiveness other Obligations on a pari passu basis, (ii) if the initial all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of any Incremental Loan Amendment a four-year average life to maturity or the remaining life to maturity), but excluding reasonable and customary arrangement, structuring and underwriting fees with respect to an such Incremental Loan pursuant Facility) applicable to this Section 2.01(c)(i)(B) any Incremental Facility exceeds by more than 0.50% per annum the First Lien Indebtedness Ratio corresponding all-in yield (determined on a pro forma basis the same basis) applicable to the Loan, the then outstanding initial Loans, or any outstanding prior Incremental Facility (each, an “Existing Facility” and the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Margin with respect to each Existing Facility, as the case may be, shall automatically be increased by the Yield Differential, effective upon the making of the relevant determination date as if such Incremental Loans pursuant Facility (it being agreed that to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be extent the all-in-yield with respect to such Incremental Facility is greater than (x) 3.50 the all-in-yield of an Existing Facility solely as a result of a higher LIBOR floor, then the increased interest rate applicable to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan Existing Facility shall be subject to effected solely by increasing the prior consent of the Administrative Agent (such consent not to be unreasonably withheldLIBOR floor applicable thereto); . (iii) each tranche of any such Incremental Loans Facility shall be in an aggregate principal amount that is not less have a maturity date no sooner than $10,000,000 (or such lesser amount that represents all the Maturity Date and a weighted average life to maturity no shorter than the weighted average life to maturity of the remaining availability under the limits set forth in clause (i) above); Loan, respectively, (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans Facility shall be entitled to participatethe same voting rights as the existing Loan and shall be entitled to receive proceeds of prepayments on the same basis as the existing Loan, (v) 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, (vi) any such Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof, (vii) the proceeds of any Incremental Facility will be used to finance Permitted Acquisitions and to finance Capital Expenditures (viii) the extent Borrower shall execute a promissory note in favor of any new Lender or any existing Lender requesting a promissory note whose Commitment hereunder is increased as provided in Section 2.09(b2.5(b), in mandatory prepayments); and (vix) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth on Schedule 3.1 and Section 3.6 shall have been satisfied, (x) the Agent shall have received (A) an opinion or opinions (including, if reasonably requested by the Agent, local counsel opinions) of counsel for the Loan Parties, addressed to the Agent and the Lenders, in this form and substance acceptable to the Agent, (B) any authorizing corporate documents as the Agent may reasonably request and (C) a duly executed Notice of Borrowing, and (xi) the Agent shall have received from the Borrowers updated Projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Agent, demonstrating or certifying that, (y) the representations and warranties set forth in Section 4 are true, correct and Sections 5.02 complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and 5.03 (it being understood warranties that all references to “already are qualified or modified by materiality in the text thereof), as of the closing date of any such Borrowing” or similar language Incremental Facility, and (z) after giving effect to any such Incremental Facility on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.02 7 and no Default or Event of Default shall exist. Participation in the Incremental Facility shall be deemed offered first to refer each of the existing Lenders on a pro rata basis, but each such Lender shall have no obligation to provide all or any portion of the Incremental Facility. If the amount of the Incremental Facility requested by the Borrowers shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrowers may invite other banks, financial institutions and investment funds reasonably acceptable to the effective date Administrative Agent to join this Agreement as Lenders hereunder for the portion of such Incremental Loan Amendment) and Facility not taken by existing Lenders, provided that such other conditions banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the parties to such Incremental Loan Amendment shall agreeAgent may reasonably request. The Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms of any new Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementFacility therein.
Appears in 1 contract
Incremental Loans. The Borrower At any time, the Borrowing Agent may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loan (any such additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans hereunder under the Revolving Credit Facility (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) after the Third Amendment Effective Date, the total aggregate principal amount of for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed the greater of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus 200,000,000 and (B) additional amounts so long as both at the time amount of any such request Consolidated Adjusted EBITDA for the immediately preceding four (4) prior Fiscal Quarters of the Borrowing Agent and upon its Subsidiaries, (ii) the effectiveness of any total aggregate principal amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 for Incremental Term Loans and $5,000,000 for Incremental Revolving Credit Increases, or (xin each case) 3.50 to 1.00 at any time during a whole multiple of $1,000,000 in excess of such minimum amount, or, if less, the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject remaining amount permitted pursuant to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in foregoing clause (i) above); and (iviii) except for Incremental Loans requested under clause no more than threetwo (x32) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans Commitments shall be greater than permitted during the Average Life to Maturity term of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to this Agreement. Each such TV/Radio Subsidiary. Such notice shall specify the date (weach, an “Increased Amount Date”) on which the amount of such Borrowing Agent proposes that any Incremental Loans and the Person or Persons to provide such Incremental LoansLoan Commitment shall be effective, which shall be a date not less than ten (x10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowing Agent shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrowing Agent a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Consolidated Net Leverage Ratio will be madeat least 0.25 to 1.00 less than the maximum Consolidated Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.16(a) (including any adjustment based on a Material Acquisition), based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions);
(v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and amortize on the same terms as the Closing Date Term Loans;
(II) the Applicable Margin and pricing grid, if applicable, and SOFR Adjustment for such Incremental Term Loan shall be the same as the Applicable Margin and SOFR Adjustment for the Closing Date Term Loans on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that will apply no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Closing Date Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Closing Date Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.10, be identical to the terms and conditions applicable to the Closing Date Term Loans;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required.
(3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and
(4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection therewith. Amounts prepaid with any such transaction.
(c) The Incremental Lenders shall be included in respect any determination of the Required Lenders and, unless otherwise agreed, the Incremental Loans may Lenders will not be reborrowed. Notwithstanding anything herein constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the contraryforegoing terms and conditions, no each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to provide make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsRevolving Credit Increase becomes effective, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 1 contract
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datetime, by upon prior written notice by the Borrower to the Administrative Agent as provided belowAgent, request Incremental Commitments to make term loans from one or more Lenders (including Persons who shall become Incremental Lenders pursuant in an aggregate amount not to this Section 2.01(c)) to exceed the Incremental Amount (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of each Incremental Loans shall Lender that is not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan existing Lender shall be subject to the prior consent requirements of Section 12.01(b)(iii)(A), mutatis mutandis; provided, further that:
(i) any such Incremental Commitments shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Unmatured Default shall exist and be continuing at the time of incurrence of any such Incremental Commitments or, if different, at the time of making any Incremental Loans pursuant thereto;
(iii) no existing Lender shall be under any obligation to provide such Incremental Commitments and any such decision whether to provide such Incremental Commitments shall be in such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing an Incremental Assumption Agreement or such other joinder documents required by the Administrative Agent and/or (B) any existing Lender electing to provide Incremental Commitments shall have executed an Incremental Assumption Agreement or such consent not other commitment agreement reasonably satisfactory to the Administrative Agent; and
(v) as a condition precedent to the incurrence of any Incremental Commitments, the Borrower shall:
(A) deliver to the Administrative Agent a certificate dated as of the date of the incurrence of such Incremental Commitments signed by an Authorized Officer of the Borrower (I) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase and (II) certifying that, before and after giving effect to such Incremental Commitments, (1) the representations and warranties contained in Article V are true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be unreasonably withheldtrue and correct in all respects) on and as of the date of the incurrence of such Incremental Commitments, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date and (2) no Default or Unmatured Default exists after giving effect to the incurrence of such Incremental Commitments; provided that if the borrowing of any Incremental Loans occurs subsequent to the date of the incurrence of the related Incremental Commitments, any Borrowing Notice delivered in connection therewith shall constitute a representation and warranty by the Borrower as of such date as to the accuracy of the certifications described in sub-clauses (II)(1) and (II)(2), except that, in the case of subclause (II)(1) no such representation and warranty shall be required, made or deemed with respect to the representations and warranties contained in Section 5.05 and 5.06; and
(iiiB) each tranche of pay any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(b) The Incremental Loans shall be in the form of term loans, and shall be made pursuant to an aggregate principal amount that is not less than $10,000,000 agreement among the Borrower, each applicable Incremental Lender and the Administrative Agent (or such lesser amount that represents all of each, an “Incremental Assumption Agreement”). Each Incremental Assumption Agreement shall specify the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date terms of the Incremental Loans of any Series shall not to be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b))made thereunder, and the Average Life Incremental Loans thereunder shall be made on terms and conditions substantially identical to Maturity of the then outstanding Loans (including pricing, covenants, defaults and maturity date).
(c) The Incremental Loans shall be greater than made by the Average Life applicable Incremental Lenders at the time, in the manner and subject to Maturity of the Tranche B Term Loans (except that terms and conditions set forth herein and in the applicable Incremental Assumption Agreement. Each request for Incremental Loans shall be entitled accompanied by a Borrowing Notice as required by Section 2.08.
(d) In accordance with the terms of the last paragraph of Section 8.02, any Incremental Assumption Agreement may, without the consent of any other Lender, effect such amendments to participate, to this Agreement and the extent provided in Section 2.09(b)other Loan Documents as may be necessary or appropriate, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount reasonable opinion of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect and the Borrower, to implement the provisions of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrarythis Section 2.03, no Lender a copy of which shall be obligated made available to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementLender.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Incremental Loans. The Borrower may at (a) At any time or and from time to time after prior to the Fifth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by written no less than three (3) Business Days’ prior notice to the applicable Administrative Agent as provided below(or such lesser number of days reasonably acceptable to such Administrative Agent), request to add one or more Lenders new credit facilities (including Persons who shall become each, an “Incremental Lenders pursuant to this Section 2.01(c)Facility”) to (x) provide additional denominated, in the case of any Incremental Term Loans Facility, in Dollars or, in the case of any Incremental Revolving Facility, at the option of the Borrower, in Dollars or increase the amount any Alternative Currency, and consisting of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder or an increase to an existing Class of Term Loans (collectivelyeach, the an “Incremental LoansTerm Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”) (all such Incremental Revolving Facilities not to exceed $150,000,000 in the aggregate); , or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (except in the case that the proceeds of any Incremental Loans shall not exceed are being used to finance a Permitted Acquisition or other permitted Investments, in which case the standard will be (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both no Event of Default at the time of entering into a definitive agreement with respect thereto and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) on the date of incurrence thereof), (ii) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, the Total Secured Net Leverage Ratio computed on a Pro Forma Basis shall not exceed 3.00:1.00 (provided, however, that if the proceeds of Incremental Facilities will be used to finance a Permitted Acquisition (or a similar Investment permitted hereunder), the Total Secured Net Leverage Ratio shall be tested as of the date of entering into a definitive written agreement with respect thereto) (assuming, solely for purposes of this Section 2.20 at the time of incurrence and not for any other provision hereunder, that (I) all Incremental Facilities, all Additional Term Notes and all Additional Debt secured by Liens under Section 6.02(hh), in each case established on or prior to such date are (x) fully drawn and (y) secured, whether or not so secured and (II) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “Total Secured Net Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect), provided that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Closing Date not to exceed an amount the Dollar Equivalent (calculated using the Exchange Rate on the date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $300,000,000 plus the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Closing Date that are not financed with the incurrence of Credit Agreement Refinancing Indebtedness and that do not reduce the amount of any payment otherwise due pursuant to Section 2.11(d) by operation of the proviso to such clause (such Indebtedness, the “Unrestricted Incremental First Lien Indebtedness”) (it being understood and agreed that (I) the Borrower shall designate any such request Indebtedness as Unrestricted Incremental First Lien Indebtedness on or prior to the date of such incurrence by notice to the applicable Administrative Agent and upon (II) the effectiveness Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) and (iii) (I) in the event that the Yield for any Incremental Loan Amendment Term Facility is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Facility minus 50 basis points and (II) in the event that the Yield for any Incremental Revolving Facility is higher than the Yield for the Initial Revolving Loans by more than 50 basis points, then the Applicable Margin for the Initial Revolving Loans shall be increased to the extent necessary so that the Yield for such Initial Revolving Loans is equal to the Yield for such Incremental Revolving Facility minus 50 basis points. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount 112 that is not less than $25,000,000, provided that such amount may be less than $25,000,000 and need not be in an integral multiple of $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) Each Incremental Term Facility (i) if made a part of the existing tranche of Initial Term Loans, shall have terms identical to those applicable to such Initial Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu in right of payment in respect of the Collateral with the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, (D) no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Initial Term Loans), (E) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, and (F) the covenants, events of default and guarantees (other than maturity fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans unless (x) the Lenders of the Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply only after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of the existing tranche of Initial Revolving Commitments shall have terms identical to those applicable to such Class of Initial Revolving Commitments or (ii) if consisting of an additional tranche of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Loan Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section 2.01(c)(i)(B) shall set forth the First Lien Indebtedness Ratio (determined on a pro forma basis as requested amount and proposed terms of the relevant determination date as if Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Facility and, to the extent such Incremental consent would be required for an assignment of such Loans or Commitments pursuant to this Section 2.01(c)(i)(B) had been outstanding on 9.04, the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent Issuing Bank (such consent not to be unreasonably withheld); , delayed or conditioned) (iiiany such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) each tranche of and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (iFacility Amendment”) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loansto this Agreement and, as appropriate, the Incremental other Loan Maturity Date Documents, executed by the Borrower, such Additional Lender (in the case of the Incremental Loans of this Agreement and, as appropriate, any Series shall not be earlier than the Tranche B Term other Loan Maturity Date Document, as applicable) and (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), it directly adversely amends or modifies the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause rights or duties of any Administrative Agent and/or the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental LoansAgent, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the each Administrative Agent in connection therewithand/or the Collateral Agent). Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no No Lender shall be obligated to provide any Commitments under an Incremental LoansFacility, unless it so agrees. Any Person or Persons Commitments in respect of any Incremental Facilities shall become an Commitments under this Agreement. An Incremental Lender hereunder upon execution Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agents and delivery the Borrower, to effect the provisions of this Section (including to provide for voting provisions applicable to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory Additional Lenders comparable to the Administrative Agentprovisions of clause (B) by such Person or Persons, of the Borrower and the Administrative Agent; provided that the second proviso of Section 9.02(b)). The effectiveness of such any Incremental Loan Facility Amendment shall shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction of each (or waiver) on the date thereof (each, an “Incremental Facility Closing Date”) of the express conditions set forth in respect of such Incremental Facility Amendment to be mutually agreed upon by the Additional Lenders and the Borrower customary for transactions of the type in respect of which the applicable Incremental Facility relates. The proceeds of any Loans under an Incremental Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including, without limitation, Restricted Payments, Acquisitions and other Investments). This Section 2.20 shall supersede any provisions in Section 2.11, Section 2.18 and Section 9.02 to the contrary.
(e) Upon each increase in the Revolving Commitments under any Revolving Credit Facility pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall without further act be deemed to refer have assigned to each Lender providing a portion of the effective date Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit under such Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit under such Revolving Credit Facility held by each Revolving Lender (including each such Incremental Revolving Lender), as applicable, will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders under such Revolving Credit Facility. Additionally, if any Revolving Loans are outstanding under a Revolving Credit Facility at the time any Incremental Revolving Commitments are established, the applicable Revolving Lenders immediately after effectiveness of such Incremental Loan Amendment) Revolving Commitments shall purchase and assign at par such other conditions amounts of the Revolving Loans outstanding under such Revolving Credit Facility at such time as the parties Revolving Facility Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such Incremental Loan Amendment shall agreeassignments. The Incremental Loans made Revolving Facility Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementimmediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to make up to three (x3) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, the an “Incremental LoansTerm Loan”); provided that (i) the total aggregate principal amount for all Incremental Term Loan Commitments shall not (as of any date of incurrence thereof) exceed $60,000,000 and (ii) the total aggregate amount of for each Incremental Term Loan Commitment (and the Incremental Term Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Term Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madenotice is delivered to Administrative Agent. The Borrower may invite any Lender, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any Affiliate of the commitment feeany Lender and/or any Approved Fund, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment. Any Incremental Term Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to (x) any Incremental Term Loan Commitment and the making of any Incremental Term Loans pursuant thereto, (y) any permanent repayment of Indebtedness consummated in connection therewith and (z) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.14 based on the financial statements most recently delivered pursuant to Section 6.1(a) or 6.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Term Loan Commitment and the making of any Incremental Term Loans pursuant thereto (with any Incremental Term Loan Commitment being deemed to be fully funded), (y) any permanent repayment of Indebtedness consummated in connection therewith and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Articles V and VIII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such Person or Personsrepresentation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Term Loans shall be used for general corporate purposes of the Credit Parties (including Permitted Acquisitions);
(E) each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the Administrative Agentother Term Loans on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(1) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(2) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the effectiveness Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the Applicable Margin in respect of such Initial Term Loan is equal to the Applicable Margin for the Incremental Term Loan Amendment minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loan, (A) original issue discount (“OID”) or upfront fees (which shall be subject deemed to constitute like amounts of OID) payable by the Borrower to the satisfaction Lenders under such Incremental Term Loan or the Initial Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (B) customary arrangement or commitment fees payable to any Lead Arranger (or its affiliates) in connection with the Initial Term Loan or to one or more arrangers (or their affiliates) of each of the conditions set forth in this Section and Sections 5.02 and 5.03 any Incremental Term Loan shall be excluded (it being understood that the effects of any and all references to “date of such Borrowing” or similar language in Section 5.02 interest rate floors shall be deemed included in determining Applicable Margin(s) under this provision); and
(3) except as provided above, all other terms and conditions applicable to refer any Incremental Term Loan, to the effective date of extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent and the Borrower (provided that such other terms and conditions shall not be materially more favorable to the Lenders under any Incremental Term Loans than such other terms and conditions under the Initial Term Loans);
(G) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders under the Term Loan Facility; and
(H) such Incremental Term Loan AmendmentCommitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 3.13); and
(I) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Term Loan and/or Incremental Term Loan Commitment) and such other conditions as the parties written consent or acknowledgement, if any, from each Agency with respect to such Incremental Term Loan Amendment as may be reasonably requested by Administrative Agent in connection with any such transaction (which such consents or acknowledgments shall agree. be in form and substance reasonably satisfactory to the Administrative Agent and the Incremental Lenders).
(i) The Incremental Term Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be Term Loans; provided that such Incremental Term Loan shall be designated as a separate series (each a “Series”) tranche of Incremental Term Loans for all purposes of this Agreement.
(ii) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
Appears in 1 contract
Incremental Loans. The Borrower may at At any time or from time to time after time, the Fifth Restatement Effective DateBorrowers may, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of ----------------- the Administrative Agent (such consent not which shall promptly deliver a copy to be unreasonably withheldeach of the Lenders); (iii) each , request the addition of a new tranche of term loans (the "Incremental ----------- Loans"). The Incremental Loans (i) shall be in an aggregate principal amount that is ----- not less than in excess of $10,000,000 500,000,000 or a greater amount approved by the relevant Supermajority Lenders, (ii) shall be Term Loans for all purposes hereunder (including for purposes of sharing of Collateral, Guarantees and prepayments) and (iii) shall have such pricing and other terms as may be agreed by the Borrowers and the Lenders providing such Incremental Loans. The Borrowers shall have the right to arrange for one or Credit Agreement ---------------- -48- more banks or other financial institutions (any such lesser amount that represents all of the remaining availability under the limits set forth in clause (ibank or other financial institution being called an "Additional Lender") above); (iv) except for to extend commitments to ----------------- provide Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, in an aggregate amount equal to the extent provided in Section 2.09(b)amount, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)if any, by which the Borrower shall within 30 days after commitments by the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons Lenders to provide such Incremental Loans, (x) Loans are less than the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably amount thereof requested by the Borrowers, provided that each -------- Additional Lender shall be subject to the approval of the Borrowers and the Administrative Agent in connection therewith(which approval shall not be unreasonably withheld). Amounts prepaid Commitments in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein shall become Commitments under this Agreement pursuant to an amendment to this Agreement executed by each of the contraryBorrowers, no each Lender shall be obligated agreeing to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsCommitment, the Borrower each Additional Lender, if any, and the Administrative Agent; provided that , and such amendments to the other Loan Documents as the Administrative Agent shall reasonably deem appropriate to effect such purpose. The effectiveness of such Incremental Loan Amendment amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Loans are made, of each of the conditions set forth in this Section and Sections 5.02 and 5.03 paragraphs (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendmenta) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”b) of Incremental Loans for all purposes of this AgreementSection 4.02.
Appears in 1 contract
Incremental Loans. The At any time during the first four year period following the Fifth Amendment Closing Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Revolving Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make additional revolving credit loans (x) provide additional Term Loans any such increase, an “Incremental Revolving Credit Increase” or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $50,000,000 and (ii) the total aggregate amount of for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not exceed be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) $400,000,000 no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitment, (2) the “making of any Incremental Starter Amount”Loans pursuant thereto and (3) less any Permitted Additional Indebtedness incurred Acquisition consummated in connection therewith;
(B) the Administrative Agent shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.14 based on the financial statements most recently delivered pursuant to Section 7.01(m) plus 6.01 both before and after giving effect (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as basis) to (1) any Incremental Revolving Credit Commitment, (2) the making of the relevant determination date as if such any Incremental Loans pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to this Section 2.01(c)(i)(Bbe fully funded) had been outstanding and (3) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article V shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(F) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(1) such Incremental Revolving Credit Increase shall mature on the most recent period of four consecutive fiscal quarters) Revolving Maturity Date, shall not bear interest and be greater than (x) 3.50 entitled to 1.00 fees, in each case at any time during the period beginning on rate applicable to the Fifth Restatement Effective Date Revolving Loans, and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent same terms and conditions as the Revolving Loans;
(2) the outstanding Revolving Loans and Revolving Pro Rata Shares of Swing Line Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such consent not Incremental Revolving Credit Increase) in accordance with their revised Revolving Pro Rata Shares (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to be unreasonably withheldmake all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 3.05 in connection with such reallocation as if such reallocation were a repayment); and
(iii3) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents except as provided above, all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of other terms and conditions applicable to such Incremental Loans may Revolving Credit Increase shall, except to the extent otherwise provided in this Section 2.15, be accelerated pursuant identical to Section 2.08(b)), the terms and conditions applicable to the Average Life to Maturity of the Revolving Loans;
(G) any Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Lender with an Incremental Loans Revolving Credit Increase shall be entitled to participatethe same voting rights as the existing Lenders under the Revolving Loans and any Credit Extensions made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Loans made hereunder;
(H) such Incremental Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the extent provided in provisions of this Section 2.09(b), in mandatory prepayments2.15); and and
(vI) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary deliver or cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify delivered any customary legal opinions or other documents (wincluding, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) the amount of each Loan Party authorizing such Incremental Loans and the Person or Persons to provide such Incremental Loans, (xRevolving Credit Commitment) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide with any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementtransaction.
Appears in 1 contract
Sources: Credit Agreement (United States Lime & Minerals Inc)
Incremental Loans. The Borrower may at any time or may, from time to time time, on up to four (4) occasions during the period from the Effective Date to the date that is thirty (30) months after the Fifth Restatement Effective DateDate (such period, the “Incremental Loan Option Period”), by written notice to Administrative Agent, elect to increase the Administrative Agent as provided below, request Revolving Commitments or enter into one or more tranches of incremental term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such other amount as may be acceptable to Issuing Bank, Administrative Agent and Borrower), so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $750,000,000. Any such election must be made by the Borrower no later than the date that is thirty (30) days prior to the last day of the Incremental Loan Option Period. Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of Borrower, to arrange a syndicate of Lenders willing to increase their existing Revolving Commitments, or to participate in such Incremental Term Loans, or extend Revolving Commitments, as the case may be (including Persons who each existing Lender so agreeing to an increase in its Revolving Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender” and each new bank, financial institution or other entity, an “Augmenting Lender”). Each Increasing Lender and each Augmenting Lender increasing or extending a Revolving Commitment shall become be acceptable to Issuing Bank and Swingline Lender. No consent of any Lender (other than the Lenders participating in the increase or any Incremental Lenders Term Loan) shall be required for any increase in Revolving Commitments or Incremental Term Loan pursuant to this Section 2.01(c2.15. Increases and new Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.15 shall become effective on the date agreed by Borrower, Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and Administrative Agent shall notify each Lender thereof. Such Incremental Term Loans and increases in the Revolving Commitments shall be evidenced by the execution and delivery Borrower, Administrative Agent and Increasing Lender or Augmenting Lender (and, in the case of any increase or extension of a Revolving Commitment, Issuing Bank and Swingline Lender), as the case may be, of documentation acceptable to Administrative Agent. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender) to or tranche of Incremental Term Loans shall become effective under this Section 2.15 unless, (i) on the date of such effectiveness, (x) provide additional Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request (it being understood and agreed that the forms of certificates, documents and opinion letters delivered pursuant to Section 5.01(a)(ii) through (vi) shall be acceptable), (y)(A) the conditions set forth in Section 5.02(a) and (b) shall be satisfied and (B) after giving effect to the increase in the Revolving Commitments and the Incremental Term Loans or increase to be made on such date, the amount Total Outstandings shall not exceed the Borrowing Base, and (z) Borrower shall be in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to any Loans to be made on such date and the application of their Term Loans and/or the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) establish one and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 8.14) and executed by a Responsible Officer of Borrower, which certificate can be incorporated into and constitute a part of an Incremental Amendment executed by Borrower pursuant to this Section 2.15. No Incremental Term Loans shall be made under this Section 2.15 unless, as of the date of such proposed Incremental Term Loan, all of the Term Loan Commitments in effect prior to such date shall have been fully drawn or terminated (whether upon the expiration of the Availability Period or otherwise in accordance herewith or under any other Loan Document). On the effective date of any increase in the Revolving Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to Administrative Agent such amounts in immediately available funds as Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Revolving Commitment Percentage of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by Borrower, in accordance with the requirements of Section 2.01(a)). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification by Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loan Maturity Date (but may have amortization prior to such date) and (y) shall have the weighted average life to maturity no shorter than the weighted average life to maturity of the initial Term Loans, and (c) shall be treated substantially the same as (and in any event no more additional tranches of term loans hereunder (collectivelyfavorably than) the Revolving Loans and the initial Term Loans, the “Incremental Loans”)as applicable; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less terms and conditions applicable to any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of maturing after the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Term Loan Maturity Date and (ii) the Incremental Loan Principal Payment Dates (if any) for such Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Increases in Revolving Commitments and Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (zan “Incremental Amendment”) of this Agreement and, as appropriate, the Applicable Margin that will apply to other Loan Documents, executed by Borrower, each Increasing Lender participating in such Incremental Loans and (if applicable) the rate of the commitment feetranche, each Augmenting Lender participating in such tranche, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by , and, in the case of increases in Revolving Commitment, Issuing Bank and Swingline Lender. The Incremental Amendment may, without the consent of any other Lenders (except as expressly required pursuant to Section 11.01), effect such Person or Persons, the Borrower amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent; provided that , to effect the effectiveness provisions of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth this Section 2.15. Nothing contained in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” 2.15 shall constitute, or similar language in Section 5.02 shall otherwise be deemed to refer be, a commitment on the part of any Lender to the effective date of such increase its Revolving Commitment hereunder, or provide Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementTerm Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Trust IV, Inc.)
Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments or Extended Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments incurred after the Closing Date shall not (as of any date of Incurrence thereof) exceed $100,000,000, (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1), and (3) the aggregate amount of Incremental Term Loan Commitments and Incremental Term Loans shall not exceed zero dollars at any time. Each such notice shall specify the date (A) $400,000,000 (the each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at on which the time of any such request and upon the effectiveness of Borrower proposes that any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days 5 Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto, provided that in connection with any Incremental Loan Commitment Incurred to finance a Permitted Acquisitions, this clause (A) shall be madeapply only to any Event of Default under Section 10.1(a), (b), (i) or (j), but subject to, if agreed by the Incremental Lenders providing such Incremental Loan Commitment, customary “SunGard” protections or limited conditionality, as applicable;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the Specified Representations shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(x) such Incremental Term Loan will not have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date and shall otherwise have terms customarily associated with “term loan A loans”;
(y) subject to clause (x) above, the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans pricing, interest rate margins, discounts, premiums, rate floors and (z) the Applicable Margin that will apply fees and maturity and amortization schedule applicable to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender Term Loan shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) determined by such Person or Persons, the Borrower and the Administrative Agentapplicable Incremental Lenders; and
(z) except as provided that the effectiveness of above, all other terms and conditions applicable to such Incremental Term Loan Amendment shall be subject shall, except to the satisfaction of each of the conditions set forth extent otherwise provided in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall 5.13, be deemed to refer identical to the effective date of such Incremental Loan Amendment) terms and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant applicable to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.Initial Term Loan;
Appears in 1 contract
Sources: Credit Agreement (SYNAPTICS Inc)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments for additional term loans in an amount not to exceed the Incremental Loan Amount from one or more Incremental Lenders (including Persons who other than an Ineligible Institution). Such notice shall become Incremental Lenders pursuant to this Section 2.01(c)set forth (i) to (x) provide additional Term Loans or increase the amount of their the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Initial Term Loans and/or (yan “Initial Term Loan Increase”) establish one or more additional tranches of commitments to make term loans hereunder with terms different from the Loans (collectively, the “Incremental Loans”). Incremental Loans shall be (A) secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, (B) secured by the Collateral on a junior basis to the Liens securing the Initial Term Loans or (C) unsecured.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (i) the aggregate amount Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of Incremental the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus 9.04 (B) additional amounts so long as both at provided, further, that the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or an Approved Fund of a Lender). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. In any event, (such consent not to be unreasonably withheld); (iiii) each tranche the final maturity date of any Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be no earlier than the Tranche B Term Loan Maturity Date Date, (except that ii) the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Weighted Average Life to Maturity of the Incremental Loans shall be greater no shorter than the remaining Weighted Average Life to Maturity of the Tranche B Initial Term Loans (except which, for purposes hereof, shall be calculated as though no prepayments which reduce amortization on the Initial Term Loans have been made), (iii) such Incremental Loans may participate on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Initial Term Loans hereunder, (iv) with respect to any Incremental Loans secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the All‑In Yield applicable to such Incremental Loans shall not be greater than the applicable All‑In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus 50 basis points per annum unless the Applicable Margin (together with, as provided in the proviso below, the LIBO Rate or Alternate Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All‑In Yield under this Agreement on the Initial Term Loans to equal the All‑In Yield then applicable to the Incremental Loans, minus 50 basis points per annum; provided that any increase in All‑In Yield on the Initial Term Loans due to the application of a LIBO Rate or Alternate Base Rate floor on any Incremental Loan shall be effected solely through an increase in (or implementation of, as applicable) the LIBO Rate or Alternate Base Rate floor applicable to such Initial Term Loans, (v) such Incremental Loans shall not be subject to any Guarantee by any Person other than a Loan Party, (vi) such Incremental Loans shall not be secured by a Lien on any asset other than Collateral, (vii) unless such Incremental Loans are unsecured, such Incremental Loans shall be entitled subject to participatethe Intercreditor Agreement and other intercreditor arrangements reasonably acceptable to the Administrative Agent, and (viii) if the covenants and events of default of any such Indebtedness (excluding, for the avoidance of doubt, interest rates, interest margins, rate floors, fees, funding discounts, original issue discounts and voluntary prepayment or voluntary redemption premiums and terms) (when taken as a whole) are materially more favorable to the lenders or holders providing such Incremental Loans than those applicable to the Initial Term Loans (when taken as a whole) (other than covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Loans), the Initial Term Loans will be modified to reflect such more favorable terms (taken as a whole) and the Borrower and the Administrative Agent may amend this Agreement for such purpose without the consent of any other party hereto. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.02 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent provided in Section 2.09(b)(but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans shall within 30 days after have the same guarantees as, and to the extent secured, be secured by Liens on the same assets as those assets that secure the Initial Term Loans.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.23 unless (i) on the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loanseffectiveness, (x) the date on which such Incremental Loans representations and warranties set forth in Article III and in each other Loan Document shall be madetrue and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loan Maturity Date Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) all fees and expenses owing to the Administrative Agent and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower Lenders in respect of such increase shall have been paid, and (iii) except as otherwise specified in the commitment to make such applicable Incremental LoansLoan Assumption Agreement, together the Administrative Agent shall have received (with such sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other information closing certificates reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect and reasonably consistent with those delivered on the Closing Date under Section 4.01.
(d) Each of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Initial Term Loan Increases, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Initial Term Loan Increase, or by allocating a portion of each Incremental Loan Amendment (in form reasonable satisfactory to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment preceding sentence shall be subject to Section 2.15. If any Initial Term Loan Increase is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the satisfaction of each of interest rate thereon for such Interest Period and the conditions other economic consequences thereof shall be as set forth in this the applicable Incremental Loan Assumption Agreement. In addition, in connection with any Initial Term Loan Increase the scheduled amortization payments under Section and Sections 5.02 and 5.03 (it being understood that all references 2.10(a) required to “date be made after the making of such Borrowing” or similar language in Section 5.02 Initial Term Loan Increase shall be deemed to refer ratably increased by the aggregate principal amount of such Initial Term Loans and shall be further increased for all Lenders on a pro rata basis to the effective date of extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementrecalculation.
Appears in 1 contract
Sources: Credit Agreement (Office Depot Inc)
Incremental Loans. (a) The Borrower may at any time or Borrowers may, by written notice delivered to the Administrative Agent from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request on one or more Lenders (including Persons who shall become occasions after the Third Restatement Date, request Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be Commitments in an aggregate principal amount for all such Incremental Commitments of up to (A) during the Waiver Period, $0, except up to $85,000,000 solely in connection with the incurrence of a Main Street Loan, and (B) at any time other than during the Waiver Period, an unlimited amount, so long as in the case of this clause (B), after giving effect to such Incremental Loans (and assuming in the case of any Incremental Revolving Credit Commitments, that is not such Incremental Revolving Loans have been fully drawn) and the use of proceeds thereof, the First Lien Net Leverage Ratio calculated on a Pro Forma Basis shall be equal to or less than 4.00 to 1.00 (the “Incremental Loan Amount”). Such notice shall set forth (x) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $10,000,000 (1,000,000 and a minimum amount of $5,000,000 or such lesser amount that represents all of equal to the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)Amount), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (xy) the date on which such Incremental Loans Loan Commitments are requested to become effective (which shall not be madeless than 5 Business Days nor more than 60 days after the date of such notice, (yunless the Administrative Agent shall otherwise agree) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to whether such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment Commitments are commitments to make such additional Term Loans, additional Revolving Loans or term loans or revolving loans with terms different from the Loans (loans with different terms from the Loans being referred to herein as “Specified Incremental Loans” and such commitments, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an “Specified Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsCommitments”), the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementapplicable.
Appears in 1 contract
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (xi) provide additional increase the outstanding principal amount of the outstanding Term Loans of any Class or increase the amount of their Term Loans and/or (yii) establish one or more additional term loan tranches of (any such increase or additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans hereunder under the Revolving Credit Facility (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed the Incremental Cap and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to the prior consent Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person approved by the Administrative Agent (such consent approval not to be unreasonably withheld, conditioned or delayed), to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and each Issuing Lender shall each approve each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment (iii) each tranche such approval not to be unreasonably withheld, conditioned or delayed). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. No Loan or Commitment of any Lender shall be increased without the consent of such Lender, and none of the Lead Arrangers and/or their Affiliates shall have any obligation to arrange any Incremental Loans without its prior written agreement. Any Incremental Loan Commitment shall be become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in an aggregate principal amount connection therewith; provided that in connection with a requested borrowing of any Incremental Term Loan for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is not less than $10,000,000 (or such lesser amount that represents all a Limited Condition Transaction, the condition of the remaining availability under the limits set forth in this clause (i) above); (iv) except for Incremental Loans requested under clause shall be (x) above that are Tranche A Term Loansno Potential Default or Event of Default exists or would exist at the time a binding purchase agreement for such transaction is entered into by the applicable Loan Party and (y) the absence of a Specified Event of Default at the time of and after giving effect to the consummation of such Limited Condition Transaction;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except Administrative Agent, that the scheduled final maturity of such Incremental Loans may be accelerated Borrower is in compliance with the financial covenants specified in Sections 9.12 and 9.13, in each case based on the financial statements most recently delivered pursuant to Section 2.08(b)8.11(a) or 8.11(b), as applicable, both before and the Average Life after giving effect (on a Pro Forma Basis) to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such any Incremental Loans shall be madeLoan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date (regardless of whether the Incremental Loan Commitments, as applicable, are actually drawn on the Increased Amount Date) with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that in connection with a requested borrowing of any Incremental Term Loan for the sole express purpose of financing in whole or in part the purchase price for a Limited Condition Transaction, (i) such representations and warranties shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects) on and as of the date of effectiveness of the definitive purchase agreement for such Limited Condition Transaction and (ii) the representations and warranties required to be correct and accurate at the time of the closing of such Limited Condition Transaction and funding of any applicable Incremental Term Loan will be limited to the Specified Representations;
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(v) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the Term Loan A, the Delayed Draw Term Loan A-1, the Delayed Draw Term Loan A-2 or any then existing Incremental Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders under the Term Loan A Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that will apply no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Term Loan A, the Delayed Draw Term Loan A-1, the Delayed Draw Term Loan A-2 or any then existing Incremental Term Loan) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the then existing Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.17, be identical to the terms and conditions applicable to the Term Loan A;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility (other than with respect to the payment of any upfront and/or arrangement fees in connection with the establishment thereof);
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Swingline Loans and Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required).
(3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.17, without the consent of any other Lenders; and
(4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection therewith. Amounts prepaid with any such transaction.
(c) The Incremental Lenders shall be included in respect any determination of the Required Lenders and, unless otherwise agreed, the Incremental Loans may Lenders will not be reborrowed. Notwithstanding anything herein constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the contraryforegoing terms and conditions, no each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to provide make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsRevolving Credit Increase becomes effective, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 1 contract
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement RestatementSecond Amendment Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) and any Guarantees incurred pursuant to Section 7.01(e)(ii)(A)(x) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafterthereafterplus (C) additional Incremental Loans not to exceed $1,000,000,000 in the aggregate to be used solely for the purposes permitted under Section 6.08(e) (the “▇▇▇▇▇▇▇▇▇▇ Incremental Loans”); (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.
Appears in 1 contract
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowand the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, request one if it so agrees or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(cii) any other Person appointed by the Borrower after consultation with the Administrative Agent)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount (in the case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available); provided that Incremental Loan Commitments may be incurred in the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice) and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (i) the aggregate amount Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of Incremental the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus 9.04 (B) additional amounts so long as both at provided, further, that the time consent of any such request and upon the effectiveness of any Incremental Loan Amendment Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender providing an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan pursuant Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to this Section 2.01(c)(i)(Bevidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the First Lien Indebtedness Ratio Borrower and the Incremental Lenders providing such Loans, (determined ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (iii) (A) in the case of Incremental Term Loans, (x) may participate on a pro forma rata basis, less than pro rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (B) in the case of Incremental Revolving Credit Commitments and Incremental Revolving Loans, (x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the relevant determination Incremental Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (y) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date shall be made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) the final maturity date of any Other Loans that are Term Loans (the “Other Term Loans”), shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Commitment Maturity Date, (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that on or prior to the date that is 12 months from the Funding Date, the All-In Yield applicable to such Other Term Loans of the same currency as if such Incremental the Initial Term Loans (other than Other Term Loans (w) Incurred pursuant to this Section 2.01(c)(i)(B4.04(a) had been outstanding on of Annex I, Section 4.04(b)(1)(B)(y) of Annex I, (x) having a maturity date that is more than two years after the most recent period of four consecutive fiscal quartersInitial Term Loan Maturity Date or (y) Incurred in connection with an acquisition or other Investment) shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans plus 75 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor) with respect to such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 75 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the Borrower’s option, (x) 3.50 through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to 1.00 at such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 combination of (x) and (y) 3.25 above and (E) the other terms and documentation in respect of such Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to 1.00 thereafterthe related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) each Person which applicable only to periods after the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Latest Maturity Date as of the Incremental Loans Facility Closing Date (collectively the “Additional Covenants”) which may be added without the consent of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(bother party)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b)not consistent with the Term Facilities or the Revolving Credit Facilities, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)applicable, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative AgentIncremental Arranger; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a separate series whole) at the time of incurrence of such Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each a “Series”) Lender that has Incremental Loan Commitments and the Borrower as to the effectiveness of each Incremental Loans for all purposes of this Agreement.Loan Assumption Agreement and each such effective Incremental Loan Assumption Agreement may be provided to the Lenders and the
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Incremental Loans. (a) The Borrower Company may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders new commitments (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)the “New Term Commitments”) to (x) provide make additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental New Term Loans”); provided that the sum of (i) the aggregate principal amount of all such New Term Loans made during the term of this Agreement and (ii) the aggregate principal amount of all Incremental Equivalent Debt Incurred (or, in the case of any Incremental Equivalent Debt Incurred under a revolving credit facility, the aggregate principal amount of all revolving credit commitments established thereunder) during the term of this Agreement shall not exceed $100,000,000; provided, further, that each lender of New Term Loans (each, a “New Term Holder”) shall be an Eligible Holder. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Company proposes that the New Term Commitments shall be effective; provided that any Holder offered or approached to provide all or a portion of any New Term Commitments may elect or decline, in its sole discretion, to provide such New Term Commitments.
(b) Such New Term Commitments shall become effective and the related New Term Loans shall be made as of such Increased Amount Date; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (conditions set forth in Section 4.02 were satisfied or waived by the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant Required Holders on such Increased Amount Date before or after giving effect to Section 7.01(m) plus (B) additional amounts so long as both at such New Term Commitments and to the time making of any New Term Loans pursuant thereto and after giving effect to any transaction consummated in connection therewith and the Administrative Agent shall have received a certificate to that effect dated such request date and upon executed by a Responsible Officer of the effectiveness Company; (ii) after giving effect to such New Term Commitments and the making of the New Term Loans thereunder and after giving effect to any Incremental Loan Amendment with respect transaction consummated in connection therewith, the Total Leverage Ratio shall be less than or equal to an Incremental Loan pursuant 4.50 to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined 1.00 on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld)basis; (iii) each tranche the proceeds of Incremental any New Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above)used for a Permitted Use; (iv) except the New Term Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Subsidiary Guaranty; (v) the New Term Loans shall share no greater than ratably in any mandatory prepayments of the Initial Term Loans and the Delayed Draw Term Loans; (vi) if the maturity date of the New Term Loans is earlier than the Scheduled Maturity Date of any then existing Facility, this Agreement shall have been amended in a manner reasonably satisfactory to the Administrative Agent to shorten the Scheduled Maturity Date of such Facility to a date which is no later than the maturity date of the New Term Loans, (vii) if the New Term Loans have any amortization of principal prior to the Scheduled Maturity Date of any then existing Facility (in each case, as determined prior to giving effect to the foregoing clause (vi)), this Agreement shall have been amended in an manner reasonably satisfactory to the Administrative Agent to provide for Incremental the amortization of principal of the Term Loans of such Facility such that the weighted average life to maturity of such Term Loans shall be equal to or less than that of the New Term Loans; (viii) such New Term Loans or New Term Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Company, the Administrative Agent and one or more New Term Holders; (ix) the Company shall deliver or cause to be delivered any customary corporate resolutions, corporate documentation, legal opinions, reaffirmations or other documents reasonably requested under clause by Administrative Agent in connection with any such transaction, including any supplements or amendments to the Security Agreement providing for such New Term Loans to be secured thereby; and (x) above that the terms of the New Term Loans shall be substantially the same as (and in any event no more favorable to the New Term Holders than the terms of the Initial Term Loans are Tranche A to the Initial Term Holders and the terms of the Delayed Draw Term Loans are to the Delayed Draw Term Holders) the Initial Term Loans and the Delayed Draw Term Loans, provided that
(A) the Incremental Loan terms and conditions applicable to any New Term Loans maturing after the latest Scheduled Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after such Scheduled Maturity Date; and
(B) the applicable interest rate margins and (subject to the foregoing clauses (vi) and (vii)), the maturity date and amortization schedule applicable to any New Term Loans shall be determined by the Company and the New Term Holders and shall be set forth in the applicable Joinder Agreements, provided that, if the initial “spread” (for purposes of this Section 2.09, the “spread” with respect to any Loan shall be calculated as the sum of the Incremental Applicable Margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the New Term Loans exceeds the spread then in effect with respect to the Term Loans of any Series then existing Facility by more than 0.50%, the Applicable Margin relating to the Term Loans of such Facility shall not be earlier than the Tranche B Term Loan Maturity Date (except adjusted so that the scheduled final maturity of spread relating to such Incremental New Term Loans may be accelerated pursuant does not exceed the then existing spread applicable to Section 2.08(b)), and such Term Loans by more than 0.50%; provided further that if the Average Life to Maturity of the Incremental New Term Loans shall be include an interest rate floor greater than the Average Life interest rate floor applicable to Maturity of the Tranche B Term Loans (except that Incremental Loans of any Facility, such increased amount shall be entitled equated to participatethe applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term Loans of any then existing Facility shall be required, to the extent provided an increase in Section 2.09(b)the interest rate floor for the such Term Loans would cause an increase in the interest rate then in effect thereunder, and in mandatory prepayments); and such case the interest rate floor (vbut not the Applicable Margin) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect applicable to such TV/Radio SubsidiaryTerm Loans shall be increased by such amount. Such notice shall specify (w) Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the amount of such Incremental Term Loans and the Person or Persons to provide such Incremental Loans, (x) outstanding on the date on which such Incremental New Term Loans are made shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions designated as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series tranche (each a “SeriesTranche”) of Incremental Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides.
(c) On any Increased Amount Date on which any New Term Commitments becomes effective, subject to the foregoing terms and conditions, each lender with a New Term Commitment shall become a Holder hereunder with respect to such New Term Commitment.
(d) The terms and provisions of the New Term Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any New Term Loans or New Term Commitments, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Holders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.09.
Appears in 1 contract
Incremental Loans. The (a) At any time prior to the date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental Revolving Credit Commitments (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the “Incremental New Loans”); provided that (i1) the total aggregate amount of Incremental Loans for all such New Loan Revolving Credit Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $300,000,000 and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B(2) the First Lien Indebtedness Ratio total aggregate amount for each New Loan Revolving Credit Commitment (determined on a pro forma basis as of and the relevant determination date as if such Incremental New Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any New Loan Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such New Loan Revolving Credit Commitment. Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any New Loan Revolving Credit Commitment, and (2) the making of any New Loans pursuant thereto;
(B) the proceeds of any New Loans shall be used for the purposes permitted by Section 8.12;
(C) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(D) (x) 3.50 to 1.00 at any time during the period beginning terms of each New Loan shall be set forth the relevant Joinder Agreement;
(i) the Applicable Margin and pricing grid, if applicable, for such New Loans shall be determined on the Fifth Restatement Effective Date applicable Increased Amount Date; provided that if such Applicable Margin would exceed the current Applicable Margin for the existing Revolving Credit Loans, the Applicable Margin for the existing Revolving Credit Loans shall be automatically increased to equal the Applicable Margin for the New Loans and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan such New Loans shall be subject to the prior consent of same terms and conditions as the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Revolving Credit Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Revolving Credit Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative AgentDate); provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.and
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Incremental Loans. The (a) At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided belowelect to request the establishment of increases in the Revolving Credit Commitments (any such increase, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the an “Incremental LoansLoan Commitment”) for the advancing of incremental Loans under the Revolving Credit Facility (each such advance of Loans under the Incremental Loan Commitment, an “Incremental Loan”); provided that (a) the total aggregate principal amount of all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed an amount equal to the result of (i) $500,000,000.00 minus (ii) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m9.3(f), and (b) plus the minimum principal amount of each such Incremental Loan Commitment shall not be less than $25,000,000.00 or, if less, the remaining amount permitted pursuant to the foregoing clause (Ba). Each such notice shall specify the date (each, an “Increased Amount Date”) additional amounts so long as both at on which the time of any such request and upon the effectiveness of Borrower proposes that any Incremental Loan Amendment with respect Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period acceptable to the Administrative Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan pursuant Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and the Issuing Lender shall consent to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as each Incremental Lender providing any portion of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent Commitment (such consent not to be unreasonably withheld); (iii) each tranche . Any proposed Incremental Lender offered or approached to provide all or a portion of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the any Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans Commitment may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b)elect or decline, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)its sole discretion, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental LoansLoan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (a) any Incremental Loan Commitment, (xb) the date on which such making of any Incremental Loans shall be made, (y) pursuant thereto on the Incremental Loan Maturity applicable Increased Amount Date and the Incremental Loan Principal Payment Dates (if anyc) for such Incremental Loans and any Permitted Acquisition consummated in connection therewith;
(zii) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to and the contraryLenders shall have received from the Borrower a Compliance Certificate demonstrating, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable and substance reasonably satisfactory to the Administrative Agent) by such Person or Persons, that the Borrower is in compliance with the Maximum Consolidated Net Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.1 both before and after giving effect (on a pro-forma basis) to (a) any Incremental Loan Commitment, (b) the Administrative Agent; provided making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 7 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to a Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the effectiveness Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan Amendment Commitments and Incremental Loans) reasonably requested by Administrative Agent in connection with any such transaction; and
(v) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement.
(b) Each Incremental Loan Commitment (and Incremental Loan) shall (i) constitute Obligations of the Borrower and, to the extent the other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis, and (ii) be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the satisfaction of each of the conditions set forth in this Section same terms and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility.
(c) Unless otherwise agreed by the applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loan Commitments to be terminated prior to termination of the existing Revolving Credit Commitments), each Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof).
(d) The outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such reallocation as if such reallocation were a repayment).
(e) Incremental Loan Commitments may be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders.
(f) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(g) On each Increased Amount Date, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementCommitment.
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Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments in an amount not to exceed the Incremental Loan Amount from one or more Lenders (including Persons who Incremental Lenders, all of which must be Eligible Assignees. Such notice shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that set forth (i) the aggregate amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Loans shall not exceed be identical to those of the Loans except as otherwise set forth herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans shall be no shorter than the remaining average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant average life to Section 7.01(m) plus maturity of such Other Loans and (B) additional amounts so long four) exceeds the Applicable Margin then in effect for Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as both at the time “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of any the Other Loans and (iv) the other terms and documentation in respect of such request and Other Loans, to the extent not consistent with the Term Facility, shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, (x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with respect the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loan pursuant Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to this Section 2.01(c)(i)(Bthat effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the First Lien Indebtedness Borrower’s Total Secured Leverage Ratio (determined shall not exceed 2.50:1.00 on a pro forma basis as after giving effect to such Incremental Loan Commitment, the incurrence of the relevant determination date as if such Incremental Loans pursuant thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to this Section 2.01(c)(i)(Bthat effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) had all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been outstanding paid, (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the most recent period Closing Date under Section 4.01 and (v) to the extent reasonably necessary to maintain the continuing priority of four consecutive fiscal quarters) shall not be greater than the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) 3.50 the applicable Loan Party to 1.00 any Mortgages shall have entered into, and delivered to the Administrative Agent, at any time during the period beginning on direction and in the Fifth Restatement Effective Date sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and ending on December 31in a form reasonably satisfactory to the Administrative Agent, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances) and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to make the Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such Mortgages as security for the Obligations.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to the prior consent of the Administrative Agent (such consent not Section 2.16. If any Incremental Loan is to be unreasonably withheld); (iiiallocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.11(a)(i) each tranche required to be made after the making of such Incremental Loans shall be in an ratably increased by the aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) further increased for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein all Lenders on a pro rata basis to the contrary, no Lender shall be obligated extent necessary to provide avoid any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery reduction in the amortization payments to which the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by Lenders were entitled before such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementrecalculation.
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Incremental Loans. The Borrower may at At any time or from time to time after the Fifth Restatement Effective Closing Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request the establishment of: (a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such term loan, an “Incremental Term Loan”); or (b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans”, the “Incremental Loans “); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $500,000,000 or, if greater, an amount equal to the amount of Incremental Loans shall not exceed (A) $400,000,000 (additional Indebtedness that would cause the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Consolidated Leverage Ratio (determined on a pro forma basis as of the relevant determination date as if most recently ended Measurement Period prior to the incurrence of such additional Indebtedness (or in the case of any additional Indebtedness, the proceeds of which will finance a substantially concurrent Limited Condition Acquisition, the LCA Test Date), calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness and any Limited Condition Acquisition to be consummated using the proceeds of such additional Indebtedness (and assuming any Incremental Loans pursuant Revolving Credit Commitment is fully-drawn), not to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 exceed 2.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an total aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the each Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date Commitment (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.the
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Ubiquiti Inc.)
Incremental Loans. The (a) At any time following the Closing Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(i) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $100,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loans Loan Commitment shall be effective, which shall be a date not exceed less than twenty (A20) $400,000,000 Business Days after the date on which such notice is delivered to Administrative Agent.
(b) The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Starter AmountLender”) less ); provided that both the Swing Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any Permitted Additional Indebtedness incurred pursuant portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness provide all or a portion of any Incremental Loan Amendment with respect Commitment may elect or decline, in its sole discretion, to an provide such Incremental Loan pursuant Commitment.
(c) Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to this Section 2.01(c)(i)(B(1) any Incremental Loan Commitment, (2) the First Lien Indebtedness Ratio (determined on a pro forma basis as making of the relevant determination date as if such any Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 thereto and (y3) 3.25 to 1.00 thereafter; any Permitted Acquisition consummated in connection therewith;
(ii) each Person which of the Borrower shall request to make an Incremental Loan representations and warranties contained in Section 6.1 shall be subject true, correct and complete in all material respects, except to the prior consent extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of the Administrative Agent such date (except for any such consent not to be unreasonably withheldrepresentation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); ;
(iii) each tranche the proceeds of any Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for general corporate purposes of the remaining availability under Borrower and its Subsidiaries (including Permitted Acquisitions);
(iv) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a joinder substantially in the limits set forth form of Exhibit 2.11 delivered to the Administrative Agent on or before the Increased Amount Date; and
(v) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu or junior basis and will rank pari passu or junior in clause right of payment with respect to the other Obligations.
(d) In the case of each Incremental Term Loan:
(i) above); (iv) except for such Incremental Loans requested under clause (x) above that are Tranche A Term LoansLoan will mature on such date and be subject to customary mandatory prepayment provisions as is reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Maturity Date of and the Incremental Loans of Borrower, but will not in any Series shall not be event have a scheduled maturity date earlier than the Tranche B Termination Date;
(ii) the amortization schedule for any such Incremental Term Loan Maturity Date (except that shall be 5% of the scheduled final initial principal amount for each of the first two loan years, 7.5% of the initial principal amount for the third loan year and 10% of the initial principal amount for each loan year thereafter, payable in equal quarterly installments and with all outstanding principal and interest due and payable on the maturity of date for such Incremental Loans may Term Loan;
(iii) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be accelerated pursuant to Section 2.08(b))determined by the Administrative Agent, the applicable Incremental Lenders and the Average Life to Maturity Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Incremental Applicable Margin for the Revolving Credit Loans by more than 0.50%, then the Applicable Margin for the Revolving Credit Loans shall be greater than the Average Life to Maturity increased (including at each tier of the Tranche B Term pricing grid) so that the Applicable Margin in respect of such Revolving Credit Loans (except that Incremental Loans shall be entitled to participate, is equal to the extent Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in Section 2.09(b), in mandatory prepayments); and (vdetermining the Applicable Margin(s) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement applicable to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such each Incremental Loans Term Loan and the Person or Persons to provide such Incremental Applicable Margin(s) for the Revolving Credit Loans, (x) the date on original issue discount (“OID”) or upfront fees (which such Incremental Loans shall be made, (ydeemed to constitute like amounts of OID) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of to the commitment to make Lenders under such Incremental Loans, together Term Loan or the Revolving Credit Loans in the initial primary syndication thereof shall be included (with such other information reasonably requested by the Administrative Agent OID being equated to interest based on assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to any lead arranger (or its Affiliates) in connection therewith. Amounts prepaid in respect with the Revolving Credit Loans or to one or more arrangers (or their affiliates) of any Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender Term Loan shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 excluded (it being understood that the effects of any and all references to “date of such Borrowing” or similar language in Section 5.02 interest rate floors shall be deemed included in determining Applicable Margin(s) under this provision); and
(iv) except as provided above, all other terms and conditions applicable to refer such Incremental Term Loan shall, except to the effective date extent otherwise provided in this Section 2.11, be identical to the terms and conditions applicable to the Revolving Credit Loans.
(e) In the case of each Incremental Revolving Credit Increase:
(i) such Incremental Loan Amendment) Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and such other be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the parties Revolving Credit Facility;
(ii) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(iii) the outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(f) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.11, without the consent of any other Lenders.
(g) The Borrower shall deliver or cause to be delivered (1) any Notes evidencing any Incremental Loans or Incremental Loan Commitments requested by any Incremental Lender and (2) customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(h) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(i) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Amendment shall agree. The Commitment and the Incremental Loans Term Loan made pursuant thereto.
(j) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the same foregoing terms and conditions, each Incremental Loan Amendment Lender with an Incremental Revolving Credit Commitment shall be deemed become a Lender under the Revolving Credit Facility hereunder with respect to be a separate series (each a “Series”) of such Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 1 contract
Incremental Loans. (a) At any time during the period from and after the Closing Date through but excluding the final day of the Availability Period, the Borrower may (but subject to the conditions set forth in clauses (b) and (c) below), add one or more new tranches of term facilities and/or increase the principal amount of the term loan commitments by an amount in the aggregate for all such new tranches and increases in term loan commitments not to exceed $20,000,000 (each such new tranche or increase, an “Incremental Facility” and the loans thereunder, “Incremental Loans”). Incremental Facilities may be provided by any Lender (it being understood that no Lender shall be obligated to increase its Commitments or participate in any Incremental Facility) or any prospective lender who is reasonably satisfactory to Agent and Borrower. The Borrower may shall not be obligated to offer the opportunity to any Lender (other than the Initial Lenders) to participate in any Incremental Facility. Any Incremental Facility shall be in an amount of at least $1,000,000.
(b) Each of the following shall be conditions precedent to any time Incremental Facility:
(i) Agent or from time to time after Borrower has obtained the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request commitment of one or more Lenders (including Persons who or other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the applicable Incremental Facility and any such Lenders (or prospective lenders) shall become have executed and delivered to the Agent and the Borrower such documentation as may be reasonably required by the Agent to evidence and effectuate such Incremental Lenders pursuant to this Section 2.01(c)) to Facility (x) provide additional Term Loans or increase an “Incremental Agreement” and the amount date of their Term Loans and/or (y) establish one or more additional tranches the effectiveness of term loans hereunder (collectively, such Incremental Agreement the “Incremental LoansDate”); provided that , in form and substance reasonably satisfactory to the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders), to which such Lenders (or prospective lenders), Borrower, and Agent are party, and
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied. On the Incremental Date of such Incremental Agreement, each Lender party thereto and not previously a party to this Agreement shall become a Lender for all purposes in connection with this Agreement. Any Incremental Agreement may, with the consent of Agent, Borrower and the Lenders or prospective lenders agreeing to the proposed 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 2.14.
(c) The terms and provision of the Loans made pursuant to any Incremental Facility shall be as follows:
(i) the aggregate amount creation or provision of any Incremental Facility shall require the approval of the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders) (which approval shall be separate and distinct from such Lender’s discretionary right to agree to provide any portion of any Incremental Facility and any such approval of the providing of Incremental Loans or the Borrower’s entering into any Incremental Facility shall not exceed not, in and of itself, require or imply that such Lender agrees to provide any portion of such Incremental Facility),
(Aii) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant terms and conditions applicable to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect shall be identical to an the Loans (it being understood that Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on Loans may be a pro forma basis as part of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than Loans), except (x) 3.50 as to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date maturity and ending on December 31, 2014 and amortization (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); following clauses (iii) each tranche and (iv)), (y) terms and conditions that are not more favorable to the Lenders of such Incremental Loan relative to the Lenders holding the Loans outstanding immediately prior to the incurrence of such Incremental Loan and (z) as may be otherwise agreed to by the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders), the Lenders making such Incremental Loan and Borrower; provided that the terms and conditions applicable to any Incremental Loan maturing after the latest Maturity Date in effect for the Loans outstanding immediately prior to the incurrence of such Incremental Loan may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after such latest Maturity Date,
(iii) the Weighted Average Life to Maturity of any Incremental Loans shall be in an aggregate principal amount that is not less no shorter than $10,000,000 (or such lesser amount that represents all the remaining Weighted Average Life to Maturity of the remaining availability under the limits set forth in clause (i) above); then existing Loans, and
(iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date maturity date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Latest Maturity Date then in effect.
(except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than deemed, unless the Average Life context otherwise requires, to Maturity of the Tranche B Term include Loans (except that made pursuant to any Incremental Facility pursuant to this Section 2.14. The Incremental Loans established pursuant to this Section 2.14 shall constitute Loans under, and shall be entitled to participateall the benefits afforded by, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans this Agreement and the Person or Persons to provide such Incremental Loansother Loan Documents, (x) and shall, without limiting the date on which such Incremental Loans shall be madeforegoing, (y) the Incremental Loan Maturity Date benefit equally and ratably from any guarantees and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable security interests created by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.the
Appears in 1 contract
Sources: Credit Agreement (Pernix Therapeutics Holdings, Inc.)
Incremental Loans. The Borrower may at (a) At any time or from time to time after the Fifth Restatement Effective Closing Date, the Borrower may by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such additional term loan, the an “Incremental LoansLoan”); provided that (ix) the aggregate principal amount of all such Incremental Loans shall not exceed $15,000,000, collectively, (Ay) the aggregate principal amount of the Loans then outstanding after giving effect to such Incremental Loans shall not exceed $400,000,000 165,000,000 and (z) the aggregate principal amount of each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clauses (x) and (y). Each such notice shall specify the date (each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at on which the time of any such request and upon the effectiveness of Borrower proposes that any Incremental Loan Amendment with respect Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee, to provide an Incremental Loan pursuant Commitment (any such Person, an “Incremental Lender”); provided that, if any such Incremental Lender is Standard General, any Incremental Loans made by it shall be subject to this the restrictions set forth in Section 2.01(c)(i)(B10.9(g) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans were purchased by it pursuant to this Section 2.01(c)(i)(B10.9(g). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) had been outstanding no Default or Event of Default shall exist on the most recent period of four consecutive fiscal quarters) shall not be greater than such Increased Amount Date before or after giving effect to (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 Incremental Loan Commitment and (y) 3.25 to 1.00 thereafter; the making of any Incremental Loans pursuant thereto;
(ii) each Person which of the Borrower shall request to make an Incremental Loan representations and warranties contained in Article V shall be subject true and correct in all material respects, except to the prior consent extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of the Administrative Agent such date (except for any such consent not to be unreasonably withheldrepresentation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); ;
(iii) each tranche the proceeds of any Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all used for general corporate purposes of the remaining availability Borrower and its Subsidiaries (including Permitted Acquisitions, but excluding prepayments of any Indebtedness incurred under the limits set forth in clause Section 7.1(1) (i) aboveunless accompanied by a permanent reduction of commitments); );
(iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the each Incremental Loan Maturity Date of Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of any Series the Borrower and shall not be earlier than secured and guaranteed with the Tranche B Term Loan Maturity Date other Extensions of Credit on a pari passu basis;
(except that v) the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity terms of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such relevant Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement., provided that:
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (Turning Point Brands, Inc.)
Incremental Loans. The (a) Borrower may at any time or from time to time after time, on not less than five (5) Business Days’ notice request the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request establishment of (x) one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans term loan commitments, which may be in the form of a new tranche of term loans or an increase in the amount of their the Term Loans and/or (such new term loan commitments or increase, the “New Term Loan Commitments”) or (y) establish one or more additional tranches revolving loan commitments, which shall be an increase in the amount of term loans hereunder the Revolving Credit Commitments (collectivelysuch increased commitments, the “Incremental LoansNew Revolving Loan Commitments” and together with the New Term Loan Commitments, the “New Loan Commitments”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental . Each New Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans Commitment shall be in an aggregate principal amount that is not less than of at least $10,000,000 and in integral multiples of at least $5,000,000 and the aggregate principal amount of all New Loan Commitments (or such lesser and excluding for the avoidance of doubt the Term A Loan Commitments) shall not exceed the Available Incremental Amount.Each request for a New Loan Commitment shall set forth the requested amount that represents all and proposed terms of the remaining availability relevant New Loan Commitment and the Lenders or other Persons willing to provide such New Loan Commitments. New Loan Commitments may be made by any existing Lender or if necessary to achieve the full amount of the requested New Loan Commitment, any other Person that qualifies as an Eligible Assignee (any such Person, an “New Lender”), provided that no Person shall be a New Lender without the consent of Administrative Agent (which consent shall not be unreasonably withheld).
(c) The making of any Loan under this Section 2.18 (a “New Term Loan” or a “New Revolving Loan”, as applicable, and collectively, the limits “New Loans”) shall (i) be subject to each condition set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) 4.2 and such other conditions as Borrower, the parties to applicable Lenders and Administrative Agent shall agree (including delivery of any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such Incremental Loan Amendment shall agree. The Incremental Loans made transaction); and (ii) be documented pursuant to the same Incremental a supplement or joinder to this Agreement executed by ▇▇▇▇▇▇▇▇, each applicable New Lender and Administrative Agent. Any New Loan Amendment Commitments shall be deemed to be designated in the applicable supplement or joinder either as a separate series tranche (in the case of term loans) or an increase to the existing Term Loans or Revolving Credit Commitments, as applicable (in each case a “SeriesTranche”) of Incremental Loans ), for all purposes of this Agreement.
(d) The terms and provisions of the New Loans and New Loan Commitments shall, except as otherwise set forth herein or in the applicable supplement, be identical to those applicable to the Term Loans or Revolving Loans, as the case may be. In any event, (i) such New Loans shall (x) satisfy the Required Debt Conditions, (ii) the amortization schedule applicable to any Tranche of New Loans shall be determined by Borrower and the applicable New Lenders, (iii) the interest rates, fees (including any original issue discount), other pricing-related provisions and yield applicable to any New Loans shall be determined by Borrower and the applicable New Lenders and shall be set forth in each applicable supplement, and (iv) will constitute “Senior Debt” or similar terms under and as such terms of defined in each Subordination Agreement. Notwithstanding anything to the contrary in Section 11.11, each applicable supplement or joinder may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.18.
(e) On the date the New Loan Commitments shall be effective (the “Increased Amount Date”), each New Lender with a New Revolving Loan Commitment shall make a Revolving Loan
Appears in 1 contract
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowand the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, request one if it so agrees or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(cii) any other Person appointed by the Borrower after consultation with the Administrative Agent)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount (in the case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available); provided that Incremental Loan Commitments may be incurred in the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (i) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice) and (i) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (1) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (A) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (1) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (i) the aggregate amount Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of Incremental the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not exceed be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender providing an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, (i) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (i) (A) $400,000,000 in the case of Incremental Term Loans, (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (A) in the case of Incremental Revolving Credit Commitments and Incremental Revolving Loans, (x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (y) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date shall be made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) the final maturity date of any Other Loans that are Term Loans (the “Other Term Loans”), shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the 2027 Revolving Facility Maturity Date, (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Starter Amount”Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that on or prior to the date that is 12 months from the Funding Date, the All-In Yield applicable to such Other Term Loans of the same currency as the Initial Term Loans (other than Other Term Loans (w) less any Permitted Additional Indebtedness incurred Incurred pursuant to Section 7.01(m4.04(a) of Annex I, Section 4.04(b)(1)(B)(y) of Annex I, (x) having a maturity date that is more than two years after the Initial Term Loan Maturity Date or (y) Incurred in connection with an acquisition or other Investment) shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans plus 75 basis points per annum unless the interest rate (Btogether with, as provided in the proviso below, the Adjusted LIBO Rate floor or Adjusted Term SOFR floor) additional amounts with respect to such Loans is increased so long as both to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 75 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor, Adjusted Term SOFR floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor, Adjusted Term SOFR floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) above and (E) the other terms and documentation in respect of such Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to the related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) applicable only to periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “Additional Covenants”) which may be added without the consent of any other party)), to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such other terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the time of any incurrence of such request Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each Lender that has Incremental Loan Commitments and the Borrower as to the effectiveness of each Incremental Loan Assumption Agreement and each such effective Incremental Loan Assumption Agreement may be provided to the Lenders and the Administrative Agent. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, (i) this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on evidenced thereby including the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31Additional Covenants, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to Assumption Agreement may, without the prior consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the Administrative Agent (such consent not other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the applicable Incremental Arranger and the Borrower, to be unreasonably withheld); effect the provisions of this Section 2.22, including to effect technical and corresponding amendments to this Agreement and the other Loan Documents and (iii) at the option of the Borrower in consultation with the applicable Incremental Arranger, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Class or Classes, in each tranche of case under this clause (iii), so long as the applicable Incremental Arranger reasonably agrees that such modification is favorable to the applicable Lenders. Incremental Loans and Other Loans shall rank pari passu in right of payment and security (but without regard to the control of remedies) with the other Obligations under this Agreement, shall not at any time be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all guaranteed by any Subsidiary of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above Borrower other than Subsidiaries that are Tranche A Term LoansGuarantors, and the Incremental Loan Maturity Date of the Incremental Loans of any Series obligations in respect thereof shall not be earlier secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementCollateral.
Appears in 1 contract
Sources: Refinancing Amendment to Credit Agreement (Altice USA, Inc.)
Incremental Loans. The (a) Provided there exists no Default or Event of Default, upon notice to the Agent (which shall promptly notify the then-existing Lenders and potential new Lenders), Borrower may at any time or from time to time after request incremental Loans (“Incremental Loans”) in an aggregate principal amount of $40,000,000. At the Fifth Restatement time of sending such notice, Borrower (in consultation with the 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 Lenders).
(b) Each Lender shall notify the Agent within such time period whether or not it agrees to fund such requested Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined such request. The Agent shall notify Borrower and each Lender of Lenders’ responses to each request made hereunder. In connection with such a request, Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Agent and its counsel.
(c) If Incremental Loans are to be funded in accordance with this Section 2.14, Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of the commitments for such Incremental Loans. Agent shall promptly notify Borrower and Lenders of the final allocation of such increase and the Increase Effective Date. All Incremental Loans, when funded in accordance with this Section 2.14, shall be deemed to be “Committed Loans” under Section 2.01.
(d) As a condition precedent to such Incremental Loans, Borrower shall deliver to Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by written notice a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Loans, and, (ii) in the case of Borrower, including a Compliance Certificate demonstrating pro forma compliance with Section 7.12 after giving effect to such Incremental Loans and (iii) certifying that, before and after giving effect to such Incremental Loans, the representations and warranties contained in Article V are true and correct on and as of the Increase Effective Date (except to the Administrative Agent extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as provided belowof such earlier date, request one and except that for purposes of this Section 2.14, the representation and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statement furnished pursuant to clauses (a), (b) and (c), respectively, of Section 6.01) and no Default or more Event of Default exists. Borrower shall deliver new or amended Committed Loan Notes reflecting the increased outstanding Loans of any Lender holding or requesting a Note.
(e) This Section shall supersede any provisions in Section 10.01 to the contrary. No consent of any Lender (other than the Lenders (including Persons who participating in any Incremental Loan) shall become be required for any Incremental Lenders Loans pursuant to this Section 2.01(c)2.14. The Incremental Loans (a) to shall rank pari passu in right of payment with the initial Loans made on the Closing Date (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Closing Date Loans”), (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date), (c) shall be treated substantially the same as (and in any event no more favorably than) the Closing Date Loans and (d) shall not have a weighted average life that is shorter than that of the then-remaining weighted average life of the Closing Date Loans; provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less terms and conditions applicable to any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of maturing after the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date and (except that ii) the scheduled final maturity of such Incremental Loans may be accelerated priced differently than the Closing Date Loans. Incremental Loans may be made hereunder pursuant to Section 2.08(b))an amendment or restatement (an “Incremental Loan Amendment”) of this Agreement and, and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)appropriate, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to other Loan Documents, executed by Borrower, each Lender participating in such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment feetranche, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewithand Agent. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an The Incremental Loan Amendment (in form reasonable satisfactory may, without the consent of any other Lenders, effect such technical amendments to the Administrative Agent) by such Person or Persons, the Borrower this Agreement and the Administrative other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent; provided that , to effect the effectiveness provisions of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement2.14.
Appears in 1 contract
Sources: Loan Agreement (Littelfuse Inc /De)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Commitments in an amount not to exceed the Incremental Loan Amount determined as of the date of such request from one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyLenders, the “Incremental Loans”)which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the aggregate amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as the Administrative Agent and the relevant Incremental Lenders may agree) nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Loans or commitments to make loans with terms different from the Loans (“Other Loans”), in which case such notice shall specify the terms of such Other Loans.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement, an Incremental Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Loans shall not exceed be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) if the yield on such Other Loans (as determined by the Administrative Agent and reasonably acceptable to the Majority Lenders to be equal to the sum of (x) the interest rate per annum on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus Average Life of such Other Loans and (B) additional amounts four and (z) any transaction fees, commitment fees, exit fees (other than any prepayment premium) or other similar fees payable in respect of the Other Loans and the fair market value of any warrants, options, stock or other non-cash consideration payable in respect thereof) exceeds by more than 25 basis points the interest rate per annum then in effect for existing Loans (the amount of such excess being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for such Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that for purposes of determination in this clause (iii) if the interest rate with respect to such Other Loans is fixed, the Administrative Agent shall convert the interest rate on such Other Loans to its swap equivalent floating rate or convert the interest rate on the existing Loans to its swap equivalent fixed rate and taking into account any floor included in such floating rate, and (iv) if the optional prepayment of such Other Loans during any period is subject to a prepayment premium that would exceed the Applicable Prepayment Premium in respect of the Loans during such period (without regard to the amount of any Applicable Prepayment Premium applicable to the Loans in prior periods) by more than 25 basis points, then the Applicable Prepayment Premium shall be increased by an amount equal to the amount by which such prepayment premium exceeds the Applicable Prepayment Premium in respect of the Loans. The other terms of the Incremental Loans and the Incremental Loan Assumption Agreement, to the extent not consistent with the terms applicable to the Loans hereunder, shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower and the Restricted Subsidiaries or are more favorable to the Lenders making such Other Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as both at such Other Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the time part of any Person effective as of the date of such request and Incremental Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant to Commitment and the Incremental Loans evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause 2.08 unless (i) above); at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (vii) except as otherwise provided specified in Section 6.09(a)the applicable Incremental Loan Assumption Agreement, the Borrower Administrative Agent shall within 30 days after have received (with sufficient copies for each of the date a Person becomes a TV/Radio Subsidiary cause Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Collateral Administrative Agent and Guarantee Requirement to be satisfied consistent with those delivered on the Closing Date under Section 6.01 of the Original Credit Agreement and (iii) all fees and expenses owing in respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans Commitment to the Administrative Agent, the Collateral Agent and the Person or Persons to provide such Lenders shall have been paid.
(d) To the extent any Incremental Loans are not Other Loans, (xthe scheduled amortization payments under Section 3.01(a) required to be made after the date on which making of such Incremental Loans shall be maderatably increased to provide for the pro rata payment of the principal of such Incremental Loans.
(e) The Borrower hereby agrees that if the Borrower obtains commitments from any bank or financial institution (other than any Initial Lender) to provide Incremental Commitments (the “Proposed Incremental Commitments”), the Borrower shall, without regard to whether the terms on which such Proposed Incremental Commitments are offered to it by any such institution are more or less favorable to it than any previously offered by the Initial Lenders, provide written notice thereof (yan “Incremental Offer Notice”) to the Initial Lenders setting forth such terms and shall offer the Initial Lenders the right (a “Participation Right”) to provide (on such terms) the portion of the Proposed Incremental Loan Maturity Date Commitments that, after giving effect to the provision of the Proposed Incremental Commitments and the Incremental Loan Principal Payment Dates (if any) for such making of the Incremental Loans thereunder, would result in the Initial Lenders (taken together) holding Loans representing no less than 51% of the outstanding principal amount of all Loans. Within three Business Days following receipt of such notice, one or more Initial Lenders shall provide written notice to the Borrower in the event that such Initial Lenders elect to exercise such Participation Right (in whole or in part). If any Initial Lender elects to exercise such Participation Rights through one or more of its Affiliates or Approved Funds, the portion of the Proposed Incremental Commitments to be provided by such Initial Lender shall be allocated among such Affiliates or Approved Funds as such Initial Lender shall designate to the Borrower in writing. If the Initial Lenders elect not to exercise all or any portion of such Participation Right to provide the Proposed Incremental Commitments, such Proposed Incremental Commitments and (z) Incremental Loans to be made thereunder and the Applicable Margin portion of the Proposed Incremental Commitments and Incremental Loans not subject to such Participation Right shall be made by the bank or other financial institutions that will apply originally agreed to make such Proposed Incremental Loans, in each case on terms no more favorable to such Incremental Loans and (if applicable) Lenders than those specified in the rate Incremental Offer Notice, on or before the date that is 60 days after the date on which the Initial Lender’s right to exercise the Participation Right expired. For the avoidance of doubt, the Borrower shall not be obligated to offer any Participation Right to the Initial Lenders, if, after giving effect to the provision of the commitment feeProposed Incremental Commitments and the making of the Incremental Loans thereunder, if anyin each case by one or more other Incremental Lenders, payable the Initial Lenders would nevertheless hold Loans representing at least 51% of the outstanding principal amount of all Loans. The acceptance or rejection of any offer to the Initial Lenders by the Borrower in respect of the commitment to make Proposed Incremental Commitments contemplated by any Incremental Offer Notice shall not operate as a waiver or affect in any other manner such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid party’s rights hereunder in respect of any other Incremental Loans may not be reborrowed. Notwithstanding anything herein to Offer Notice or the contrary, no Lender shall be obligated to provide any Proposed Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementCommitments contemplated thereby.
Appears in 1 contract
Sources: Amendment and Restatement and Incremental Loan Assumption Agreement (Atp Oil & Gas Corp)
Incremental Loans. The (i) At any time prior to the date that is six (6) months prior to the Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(A) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder (collectivelyany such term loan, an “Incremental Term Loan”); or
(B) one or more increases in the Aggregate Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the revolving credit facility hereunder (any such increase, an “Incremental Revolving Increase” and, together with the Incremental Term Loans”, the “Incremental Loans “); provided that (i1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $200,000,000 and (2) the total aggregate amount of for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate a minimum principal amount that is not less than of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans other amounts as may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable agreed by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided ) or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the effectiveness date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Amendment Commitment. Any Incremental Loan Commitment shall be subject become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the satisfaction Administrative Agent, that (1) the Borrower is in compliance with the financial covenants set forth in Section 8.11 and (2) the Consolidated Leverage Ratio will be less than the maximum Consolidated Leverage Ratio in effect as of the end of the fiscal quarter during which the Increase Amount Date occurs pursuant to Section 8.11(a), in each case based on the financial statements most recently delivered pursuant to Section 7.01(a) or 7.0.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the conditions representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Loans or extensions of credit hereunder on a pari passu basis;
(1) in the case of each Incremental Term Loan (the terms of which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Lender Joinder Agreement.):
Appears in 1 contract
Incremental Loans. The (a) At any time prior to the Maturity Date, as applicable, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental revolving credit commitments (including Persons who shall become any such incremental revolving credit commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the an “Incremental LoansRevolving Credit Loan”); provided that (i) the total aggregate amount of for all such Incremental Loans Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $100 million. Each such notice shall specify the date (A) $400,000,000 (the each, an “Incremental Starter AmountIncreased Amount Date”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Revolving Credit Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 ten (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i10) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be madenotice is delivered to Administrative Agent. The Borrower may invite any Lender, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate any Affiliate of the commitment feeany Lender and/or any Approved Fund, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such and/or any other information Person reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(A) by no Default or Event of Default shall exist on such Person Increased Amount Date before or Personsafter giving effect to (1) any Incremental Revolving Credit Commitment and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a Pro Forma Basis with the financial covenants set forth in Article VIII both before and after giving effect to (1) any Incremental Revolving Credit Commitment (and assuming for these purposes that all Incremental Revolving Credit Commitments are fully drawn as Incremental Revolving Credit Loans) and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith;
(C) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Increase Amount Date (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date;
(D) the proceeds of any Incremental Revolving Credit Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Administrative Agent; provided that Incremental Revolving Credit Loans made thereunder) shall constitute Obligations of the effectiveness of such Incremental Loan Amendment Borrower and shall be subject to secured and guaranteed with the satisfaction other Extensions of Credit on a pari passu basis;
(1) in the case of each Incremental Revolving Credit Loan (the terms of the conditions which shall be set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this relevant Joinder Agreement.):
Appears in 1 contract
Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loans hereunder loan (collectivelyany such additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)) ; provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $75,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an proposes that any Incremental Loan Commitment shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans effective, which shall be in an aggregate principal amount that is a date not less than $10,000,000 twenty (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i20) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days Business Days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such notice is delivered to Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants specified in Sections 9.13 and 9.14, and (2) Consolidated Total Net Leverage Ratio will be madeat least 0.25 to 1.00 less than the maximum Consolidated Total Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.14, in each case based on the financial statements most recently delivered pursuant to Section 8.12(a) or 8.12(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be the same as the Applicable Margin for the Term Loan on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that will apply no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Term Loan) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Term Loan (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.15, be identical to the terms and conditions applicable to the Term Loan;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Swingline Loans and Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.15, without the consent of any other Lenders; and
(4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection therewith. Amounts prepaid with any such transaction.
(c) The Incremental Lenders shall be included in respect any determination of the Required Lenders and, unless otherwise agreed, the Incremental Loans may Lenders will not be reborrowed. Notwithstanding anything herein constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the contraryforegoing terms and conditions, no each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to provide make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsRevolving Credit Increase becomes effective, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
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Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective DateRepresentative may, by written notice to, and with the consent of, the Agent (the “Incremental Loan Request”) one time at any time prior to the Administrative Agent as provided belowdate which is two (2) years following the Closing Date, request one or more Lenders an increase to the Revolving Loan Commitments (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelysuch increase, the “Incremental LoansFacility”); provided that ) in an amount not to exceed $15,000,000 in the aggregate from (i) existing Lenders, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) to the extent the Persons under clause (i) and (ii) above elect not to participate, any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Agent. The Incremental Loan Request shall set forth (i) the aggregate amount of the Incremental Loans Facility being requested (which shall be in minimum increments of $1,000,000 up to the maximum amount of $15,000,000), and (ii) the date on which the Incremental Facility is requested to become effective (which shall not exceed (A) $400,000,000 (be less than 30 Business Days nor more than 180 days after the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at date of the time of any such request and upon the effectiveness of any Incremental Loan Amendment Request).
(b) Agent will seek commitments from Lenders and, to the extent necessary, other financial institutions and institutional lenders who will become Lenders in connection the Incremental Facility (each of which shall be entitled to agree or decline to participate in its sole discretion). The Borrowers and each Lender participating in the Incremental Facility (including existing Lenders and new lenders, as applicable) shall execute and deliver to the Agent such documentation as the Agent shall reasonably specify to evidence the commitments with respect to an the Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as Facility of each such participating Lender. The terms and provisions of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan Facility shall be subject identical to those of the Revolving Loans (all such Loans under the Incremental Facility, “New Loans”), as reflected in the documentation evidencing the New Loans. Without limiting the generality of the foregoing, without the prior written consent of the Administrative Agent Required Lenders, (such consent not to be unreasonably withheld); a) (iiii) each tranche the final maturity date of Incremental any New Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits date set forth in clause (ia) above); of the definition of “Revolving Termination Date”, and (ivii) except for Incremental the proceeds of the New Loans requested under clause shall be used solely by Borrowers in accordance with the terms hereof, and (b) if the initial yield on such New Loans (to be equal to the sum of (x) the margin above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental LIBOR (taking into account any floor) on such New Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (vy) except as otherwise provided in Section 6.09(a), if such New Loans are initially made at a discount or the Borrower shall within 30 days after Lenders making the date same receive a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify fee directly or indirectly from any Credit Party or any Affiliate thereof for doing so (w) the amount of such Incremental Loans and discount or fee, expressed as a percentage of the Person or Persons to provide such Incremental New Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (xA) the date on which average life to maturity of such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental New Loans and (zB) four) exceeds the Applicable Margin that will apply then in effect for LIBOR Rate Loans (taking into account any floor and the original issue discount or closing or upfront fee with respect Winnebago Credit Agreement 41858764 thereto (with original issue discount and closing or upfront fees being equated to a rate assuming a 4 year average life to maturity)) (the amount of such Incremental excess being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for all Loans and (if applicable) shall automatically be increased by the rate Yield Differential, effective upon the making of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental New Loans. Any Person or Persons The Agent shall become an Incremental promptly notify each Lender hereunder upon execution and delivery as to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such the Incremental Loan Amendment Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of the Incremental Facility, this Agreement shall be subject deemed amended to the satisfaction extent (but only to the extent) necessary to reflect the existence and terms of each the Incremental Facility and the New Loans evidenced thereby and the Agent and the Borrower Representative may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, the Incremental Facility shall not become effective under this Section 1.7 unless (i) on the date of such effectiveness, the conditions set forth in this Section 2.2 shall be satisfied and Sections 5.02 the Agent shall have received a certificate to that effect dated such date and 5.03 executed by a Responsible Officer of the Borrower Representative, (it being understood ii) the Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and consistent with those delivered on the Closing Date under Section 2.1, (iii) after giving effect to the Incremental Facility and the New Loans to be made thereunder and the application of the proceeds therefrom, the Indebtedness arising under such Incremental Facility would be permitted hereunder, (iv) the Credit Parties shall be in pro forma compliance with the financial covenants set forth in Article VI after giving effect to the Incremental Facility, and (v) the Borrowers shall have delivered, at the reasonable request of the Agent, to the Agent all items reasonably necessary to maintain the continuing priority of the Lien on the Collateral as security for the Obligations.
(d) Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower Representative, take any and all action as may be reasonably necessary to ensure that all references New Loans, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by allocating a portion of the Incremental Facility to “date each outstanding Borrowing of such Borrowing” or similar language in Section 5.02 LIBOR Rate Loans on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be deemed subject to refer Section 10.4. If any New Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate Loans, then the effective date of interest rate thereon for such Incremental Loan Amendment) Interest Period and such the other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment economic consequences thereof shall be deemed to be a separate series (each a “Series”) of as set forth in the documentation evidencing the Incremental Loans for all purposes of this AgreementFacility.
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Incremental Loans. The Borrower At any time, the Borrowing Agent may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of:
(a) one or more Lenders incremental term loan commitments (including Persons who shall become any such incremental term loan commitment, an “Incremental Lenders pursuant to this Section 2.01(c)Term Loan Commitment”) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish make one or more additional tranches of term loan (any such additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans hereunder under the Revolving Credit Facility (collectivelyany such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) after the ThirdFifth Amendment Effective Date, the total aggregate principal amount of for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed the greater of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus 2400,000,000 and (B) additional amounts so long as both at the time amount of any such request Consolidated Adjusted EBITDA for the immediately preceding four (4) prior Fiscal Quarters of the Borrowing Agent and upon its Subsidiaries, (ii) the effectiveness of any total aggregate principal amount for each Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) Commitment (and the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than a minimum principal amount of $10,000,000 for Incremental Term Loans and $5,000,000 for Incremental Revolving Credit Increases, or (xin each case) 3.50 to 1.00 at any time during a whole multiple of $1,000,000 in excess of such minimum amount, or, if less, the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject remaining amount permitted pursuant to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in foregoing clause (i) above); and (iviii) except for Incremental Loans requested under clause no more than twothree (x23) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans Commitments shall be greater than permitted during the Average Life to Maturity remaining term of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days this Agreement after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to Fifth Amendment Effective Date. Each such TV/Radio Subsidiary. Such notice shall specify the date (weach, an “Increased Amount Date”) on which the amount of such Borrowing Agent proposes that any Incremental Loans and the Person or Persons to provide such Incremental LoansLoan Commitment shall be effective, which shall be a date not less than ten (x10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowing Agent shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed fully drawn) and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrowing Agent a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Consolidated Net Leverage Ratio will be madeat least 0.25 to 1.00 less than the maximum Consolidated Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.16(a) (including any adjustment based on a Material Acquisition), based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if anyCommitment being deemed to be fully drawn) for such Incremental Loans and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions);
(v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and amortize on the same terms as the Closing Date Term Loans;
(II) the Applicable Margin and pricing grid, if applicable, and SOFR Adjustment for such Incremental Term Loan shall be the same as the Applicable Margin and SOFR Adjustment for the Closing Date Term Loans on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that will apply no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Closing Date Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Closing Date Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.10, be identical to the terms and conditions applicable to the Closing Date Term Loans;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and (if applicable) the rate Ratable Shares of the commitment fee, if any, payable by the Borrower in respect Letter of the commitment to make such Incremental Loans, together with such other information reasonably requested Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required.
(3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and
(4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection therewith. Amounts prepaid with any such transaction.
(c) The Incremental Lenders shall be included in respect any determination of the Required Lenders and, unless otherwise agreed, the Incremental Loans may Lenders will not be reborrowed. Notwithstanding anything herein constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the contraryforegoing terms and conditions, no each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to provide make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or PersonsRevolving Credit Increase becomes effective, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of foregoing terms and conditions, each of Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties Revolving Credit Facility hereunder with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
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Sources: Fifth Amendment to Third Amended and Restated Credit Agreement (Construction Partners, Inc.)
Incremental Loans. The (a) Borrower may at any time or from time to time after time, on not less than five (5) Business Days’ notice request the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request establishment of (x) one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans term loan commitments, which may be in the form of a new tranche of term loans or an increase in the amount of their the Term Loans and/or (such new term loan commitments or increase, the “New Term Loan Commitments”) or (y) establish one or more additional tranches revolving loan commitments, which shall be an increase in the amount of term loans hereunder the Revolving Credit Commitments (collectivelysuch increased commitments, the “Incremental LoansNew Revolving Loan Commitments” and together with the New Term Loan Commitments, the “New Loan Commitments”); provided , provided, in each case, that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon on the effectiveness date the New Loan Commitments shall be effective (the “Increased Amount Date”) (and after giving effect thereto and the use of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(Bthe proceeds thereof), (i) the First Lien Indebtedness no Default or Event of Default exists and (ii) Borrower shall have a (A) Total Leverage Ratio (determined on a pro forma basis as of the relevant determination date most recently completed calendar quarter for which financial statements have been prepared and finalized by Borrower) of less than the lesser of 3.00 to 1.00 and 0.25 to 1.00 less than the applicable covenant level and (B) Senior Secured Leverage Ratio (on a pro forma basis as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on of the most recent period recently completed calendar quarter for which financial statements have been prepared and finalized by Borrower) of four consecutive fiscal quarters) shall not be greater less than (x) 3.50 the lesser of 2.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental 1.00. Each New Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans Commitment shall be in an aggregate principal amount that is not less than of at least $10,000,000 (or such lesser and in integral multiples of at least $5,000,000 and the aggregate principal amount that represents of all New Loan Commitments shall not exceed $100,000,000.Each request for a New Loan Commitment shall set forth the requested amount and proposed terms of the remaining availability relevant New Loan Commitment and the Lenders or other Persons willing to provide such New Loan Commitments. New Loan Commitments may be made by any existing Lender or if necessary to achieve the full amount of the requested New Loan Commitment, any other Person that qualifies as an Eligible Assignee (any such Person, an “New Lender”), provided that no Person shall be a New Lender without the consent of Administrative Agent (which consent shall not be unreasonably withheld).
(b) The making of any Loan under this Section 2.18 (a “New Term Loan” or a “New Revolving Loan”, as applicable, and collectively, the limits “New Loans”) shall (i) be subject to each condition set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) 4.2 and such other conditions as Borrower, the parties to applicable Lenders and Administrative Agent shall agree (including delivery of any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such Incremental Loan Amendment shall agree. The Incremental Loans made transaction); and (ii) be documented pursuant to the same Incremental a supplement or joinder to this Agreement executed by Borrower, each applicable New Lender and Administrative Agent. Any New Loan Amendment Commitments shall be deemed to be designated in the applicable supplement or joinder either as a separate series tranche (in the case of term loans) or an increase to the existing Term Loans or Revolving Credit Commitments, as applicable (in each case a “SeriesTranche”) of Incremental Loans ), for all purposes of this Agreement.
(c) The terms and provisions of the New Loans and New Loan Commitments shall, except as otherwise set forth herein or in the applicable supplement, be identical to those applicable to the Term Loans or Revolving Loans, as the case may be. In any event, (i) such New Loans shall (x) rank pari passu in right of payment and of security with all other Loans and (y) in the case of New Term Loans, be entitled to share in prepayments pro rata with the other Term Loans (unless the applicable New Term Lenders agree to take a lesser share of certain prepayments), (ii) with respect to each New Term Loan, the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of any existing Term Loans, (iii) with respect to any New Term Loan, the maturity date for any New Term Loan shall not be earlier than the maturity date with respect to the Term Loans, as applicable, (iv) the amortization schedule applicable to any Tranche of New Loans shall be determined by Borrower and the applicable New Lenders, (v) the interest rates, fees (including any original issue discount), other pricing-related provisions and yield applicable to any New Loans shall be determined by Borrower and the applicable New Lenders and shall be set forth in each applicable supplement; provided that the All-in Yield for any New Term Loans shall not be more than 0.50% higher than the All-in Yield for any Term Loans outstanding on the date of the issuance of such New Term Loans unless the interest rate on such outstanding Term Loans is increased so that the All-in Yield on such outstanding Term Loans is not less than the All-in Yield for the New Term Loans minus 0.50%, and (vi) will constitute “Senior Debt” or similar terms under and as such terms of defined in each Subordination Agreement. Notwithstanding anything to the contrary in Section 11.11, each applicable supplement or joinder may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.18.
(d) On each Increased Amount Date, each New Lender with a New Revolving Loan Commitment shall make a Revolving Loan to Borrower the proceeds of which will be used to prepay the Revolving Loans of the other Lenders immediately prior to such Increased Amount Date, so that, after giving effect thereto and to any other borrowings and prepayments being made on such date, the Revolving Loans outstanding are held by the Lenders pro rata based on their Revolving Credit Commitments after giving effect to such Increased Amount Date.
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Incremental Loans. The (a) At any time prior to the date that is one (1) year prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders incremental revolving credit commitments (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)any such incremental revolving credit commitment, a “New Loan Commitment”) to make incremental revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such incremental revolving credit loans, the a “Incremental New Loans”); provided that (i) the total aggregate amount of Incremental Loans for all such New Loan Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness date of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(Bincurrence thereof) exceed $75,000,000, (ii) the First Lien Indebtedness Ratio total aggregate amount for each New Loan Commitment (determined on a pro forma basis as of and the relevant determination date as if such Incremental New Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quartersmade thereunder) shall not be greater less than (x) 3.50 to 1.00 at any time during a minimum principal amount of $10,000,000 or, if less, the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject remaining amount permitted pursuant to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in foregoing clause (i) above); and (iviii) except for Incremental Loans requested under clause no more than three (x3) above that are Tranche A Term Loans, the Incremental New Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans Commitments shall be greater than permitted during the Average Life to Maturity term of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to this Agreement. Each such TV/Radio Subsidiary. Such notice shall specify the date (weach, an “Increased Amount Date”) on which the amount of such Incremental Loans and the Person or Persons to provide such Incremental LoansBorrower proposes that any New Loan Commitment shall be effective, which shall be a date not less than ten (x10) Business Days after the date on which such Incremental notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any New Loan Commitment may elect or decline, in its sole discretion, to provide such New Loan Commitment. Any New Loan Commitment shall become effective as of such Increased Amount Date; provided further that:
(A) no Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any New Loan Commitment, (2) the making of any tranche of New Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance the financial covenants set forth in Article X (it being agreed and acknowledged that, notwithstanding anything to the contrary contained in this Agreement, (1) the covenant contained in Section 10.1 shall be madecalculated on a Pro Forma Basis both before and after giving effect to (x) any New Loan Commitment, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental making of any tranche of New Loans pursuant thereto and (z) the Applicable Margin that will apply to such Incremental Loans any Permitted Acquisition consummated in connection therewith and (if applicable2) the rate of the commitment fee, if any, payable by the Borrower in with respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreement.covenant contained in
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Incremental Loans. The Borrower may In addition to Borrowings of Revolving Credit Loans pursuant to paragraph (a) above, at any time or and from time to time after prior to second anniversary of the Fifth Restatement Effective Date, the Company may request that one or more Persons (which may include the Lenders) offer to enter into commitments to make term loans (each such loan being herein called an "Incremental Loan") under this paragraph (b), it being understood that if such offer is to be made by written notice to any Person that is not already a Lender hereunder, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 10.04(b) in the event of an assignment to such Person. In the event that one or more of such Persons offer, in their sole discretion, to enter into such commitments, and such Persons and the Company agree as provided belowto the amount of such commitments that shall be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith and the amortization, request interest rate and maturity date to be applicable thereto, the Company, such Persons and the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement. The Incremental Loans to be made pursuant to any such agreement between the Company and one or more Lenders (including Persons who in response to any such request by the Company shall become be deemed to be a separate "Series" of Incremental Lenders pursuant Loans for all purposes of this Agreement. Credit Agreement Anything herein to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelycontrary notwithstanding, the “following additional provisions shall be applicable to the Incremental Loan Commitments, and Incremental Loans”); provided that , of any Series:
(i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $10,000,000 and the maximum aggregate principal amount of the Incremental Loans of all Series shall not, taken together with the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m7.01(h) plus (B) additional amounts so long as both at and the time of any such request and upon aggregate amount by which the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan Revolving Credit Commitments have been increased pursuant to this Section 2.01(c)(i)(B) 2.01(c), exceed the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafterNew Senior Secured Debt Limit then in effect; and
(ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date final maturity date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Revolving Credit Commitment Termination Date (except that and the scheduled final weighted average life to maturity of such Incremental Loans may shall not be accelerated pursuant earlier than the weighted average life to Section 2.08(b))maturity of the Revolving Credit Commitments. Following execution and delivery by the Company, one or more Lenders and the Average Life Administrative Agent as provided above of an Amendment to Maturity of this Agreement with respect to the Incremental Loans shall be greater than of any Series then, subject to the Average Life terms and conditions set forth herein, each Incremental Loan Lender of such Series severally agrees to Maturity of the Tranche B Term Loans (except that make Incremental Loans shall be entitled to participate, of such Series to the extent provided Company in Section 2.09(b)Dollars during the availability period for such Loans set forth in such Amendment, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement principal amount up to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) but not exceeding the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness Commitment of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date Series of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementLender.
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Sources: Credit Agreement (Advo Inc)
Incremental Loans. (a) The Borrower may at any time or from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments in an amount not to exceed the Incremental Loan Amount from one or more Lenders (including Persons who Incremental Lenders, all of which must be Eligible Assignees. Such notice shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that set forth (i) the aggregate amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Loans shall not exceed be identical to those of the Loans except as otherwise set forth herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant average life to Section 7.01(m) plus maturity of such Other Loans and (B) additional amounts so long four) exceeds the Applicable Margin then in effect for Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as both at the time “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of any the Other Loans and (iv) the other terms and documentation in respect of such request and Other Loans, to the extent not consistent with the Term Facility, shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Amendment with respect Assumption Agreement, this Agreement shall be deemed amended to an the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan pursuant Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.01(c)(i)(B2.22 unless (i) on the date of such effectiveness, the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the First Lien Indebtedness Borrower’s Total Secured Leverage Ratio (determined shall not exceed 2.00:1.00 and the aggregate Value of the Fixed Asset Collateral after giving effect to the Concentration Limits shall not be less than the Required Collateral Amount, in each case on a pro forma basis as after giving effect to such Incremental Loan Commitment, the Incurrence of the relevant determination date as if such Incremental Loans pursuant thereunder and the use of proceeds thereof, and the Administrative Agent shall have received a certificate to this Section 2.01(c)(i)(Bthat effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) had all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been outstanding paid and (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the most recent period Closing Date under Section 4.01.
(d) Each of four consecutive fiscal quarters) shall not the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be greater reasonably necessary to ensure that all Incremental Loans (other than (x) 3.50 Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to 1.00 at any time during the period beginning be converted into an ABR Borrowing on the Fifth Restatement Effective Date and ending on December 31date of each Incremental Loan, 2014 and (y) 3.25 to 1.00 thereafter; (ii) or by allocating a portion of each Person which the Borrower shall request to make an Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to the prior consent of the Administrative Agent (such consent not Section 2.16. If any Incremental Loan is to be unreasonably withheld); (iiiallocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.11(a)(i) each tranche required to be made after the making of such Incremental Loans shall be in an ratably increased by the aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) further increased for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein all Lenders on a pro rata basis to the contrary, no Lender shall be obligated extent necessary to provide avoid any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery reduction in the amortization payments to which the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by Lenders were entitled before such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementrecalculation.
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Incremental Loans. The At any time, the Borrower may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, elect to request the establishment of one or more Lenders increases in the Revolving Credit Commitments (including Persons who shall become any such increase, an “Incremental Lenders pursuant to this Section 2.01(c)Revolving Credit Commitment”) to make revolving credit loans (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectivelyany such loans, the an “Incremental LoansLoan”); provided that (i) the total aggregate principal amount of for all such Incremental Loans Revolving Credit Commitments shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request date of incurrence thereof) exceed $250,000,000 and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B(ii) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such total aggregate principal amount for each Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) Revolving Credit Commitment shall not be greater less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (xi). Each such notice shall specify the date (each, an “Increased Amount Date”) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower proposes that any Incremental Revolving Credit Commitment shall request be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to make Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall be subject consent to the prior consent each Incremental Lender providing any portion of the Administrative Agent an Incremental Revolving Credit Commitment (such consent not to be unreasonably withheld, delayed or conditioned). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that:
(iiia) (i) no Potential Default or Event of Default shall exist and be continuing on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto and (ii) as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 8.12, the Loan Parties would have been in compliance with the financial covenant specified in Section 9.4 [Maximum Consolidated Net Leverage Ratio] before or after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto;
(b) each tranche of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (unless qualified by materiality or reference to the absence of a Material Adverse Change, in which event shall be true and correct) as of such earlier date);
(c) the proceeds of any Incremental Loans shall be used in an aggregate principal amount that is not less than $10,000,000 accordance with Section 8.7 [Compliance with Laws; Use of Proceeds];
(or such lesser amount that represents all of the remaining availability under the limits set forth in clause d) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement;
(ie) above); each Incremental Revolving Credit Commitment (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of and the Incremental Loans made thereunder) shall constitute Obligations of any Series shall not be earlier than the Tranche B Term Loan Maturity Date Borrower on a pari passu basis;
(except that the scheduled final maturity of f) such Incremental Loans may be accelerated pursuant to Section 2.08(b)), Revolving Credit Commitments and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity part of the Tranche B Term Loans Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees (except other than any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the Incremental Loans Lenders), in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility;
(g) any Incremental Lender making any Incremental Revolving Credit Commitment shall be entitled to participate, the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the extent provided Incremental Revolving Credit Commitment to be terminated prior to termination of the existing Revolving Credit Commitments) each Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof);
(h) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Commitments) in Section 2.09(b), in mandatory prepayments); accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (vincluding the Incremental Lenders providing such Incremental Revolving Credit Commitments) except as otherwise provided in Section 6.09(a), agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall within 30 days after pay any and all costs required in connection with any prepayments and/or borrowings from all or certain of the date a Person becomes a TV/Radio Subsidiary Lenders required in connection therewith (including, without limitation, any amounts required pursuant to Section 5.10 [Indemnity]);
(i) Incremental Revolving Credit Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.11, without the consent of any other Lenders;
(j) the Borrower shall deliver or cause the Collateral and Guarantee Requirement to be satisfied delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Revolving Credit Commitments) reasonably requested by Administrative Agent in connection with any such transaction;
(k) the Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(l) on any Increased Amount Date on which any Incremental Revolving Credit Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this AgreementRevolving Credit Commitment.
Appears in 1 contract
Incremental Loans. The Borrower may at any time or from time shall have the right to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder additional Loans (collectively, the “Incremental Loans”)) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided provided, however, that (i) the aggregate amount of such Incremental Loans shall not exceed One Hundred Million Dollars (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at the time of any 100,000,000). Each such request and upon the effectiveness of any Incremental Loan Amendment must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan pursuant Loan, and any new Lender becoming a party to this Section 2.01(c)(i)(B) Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to under this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan shall be is subject to the prior consent of following conditions precedent: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheldwithheld or delayed); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans no Default or Event of Default shall be made, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans and (z) the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agent) by such Person or Persons, the Borrower and the Administrative Agent; provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in this Section and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer to existence on the effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan AmendmentParty in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans and (B) all corporate or other conditions necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s Term Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the parties to such Incremental Loan Amendment shall agreeAdministrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes an amendment or restatement of this AgreementAgreement and, as appropriate, the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.3), 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, to effect the provisions of this Section 2.2.
Appears in 1 contract
Sources: Unsecured Term Loan Agreement (First Industrial Realty Trust Inc)