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. (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 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. (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 Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (including Persons who which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. 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 equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (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 Term Lenders in connection therewith. The Borrower and each Incremental Term 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 Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall not exceed be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (Ai) $400,000,000 the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans.
(c) 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 (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at Loan Assumption Agreement. Each of the time of any such request and 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.
(d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.01(c)(i)(B2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied.
(e) Each of the First Lien Indebtedness Ratio 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 (determined other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to this Section 2.01(c)(i)(B) had been outstanding be converted into an ABR Borrowing on the most recent period date 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 31each 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 Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to the prior consent of the Administrative Agent (such consent not Section 2.15. If any Incremental Loan is to be unreasonably withheld); (iii) each tranche allocated to an existing Interest Period for a Eurocurrency 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 2.09 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.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (PHI Group, Inc./De), Term Loan Credit Agreement (Phi Inc), 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:
(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 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 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 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 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, 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 2 contracts
Sources: Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp)
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 (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. (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. (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 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 (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) 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 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 and in integral multiples of at least $5,000,000 and the aggregate principal amount of all New Loan Commitments after the Third Amendment Effective Date (or such lesser and excluding for the avoidance of doubt the ▇▇▇▇ ▇- ▇ Loan Commitments) shall not exceed $100,000,000.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 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.
(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
Appears in 1 contract
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Third 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 (ii)(A) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(i) (the “General Incremental Loans”) shall not exceed $500,000,000; (AB) $400,000,000 the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(ii) (the “Specified Incremental Starter AmountLoans”) less any Permitted shall not exceed $200,000,000; (C) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(iii) (the “Additional Indebtedness incurred pursuant Specified Incremental Loans”) shall not exceed $530,000,000 and (D) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under Section 7.01(m6.08(d)(iv) plus (Bthe “2012 Specified Acquisition Incremental Loans”) additional amounts so long as shall not exceed the Maximum 2012 Transaction Debt Amount; (ii) 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)(BLoan, (A) no Default shall exist and (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 Fourth Amendment Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (iiiii) 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); (iiiiv) 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); (ivv) 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)73), 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)82, in mandatory prepayments); and (vvi) except as otherwise provided in Section 6.09(a)243, 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 5.02 201 and 5.03 194 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 190 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. 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 (i) One or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide Borrowers may request additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder to be made on the Incremental Funding Date (collectively, the “Incremental Loans”)) by (1) one or more of the current Lenders agreeing to provide an Incremental Loan (any current Lender which so provides shall be referred to as an “Increasing Lender”) or (2) one or more new lenders (each a “New Lender”) joining this Agreement and providing an Incremental Loan, as applicable, hereunder, subject to the following terms and conditions:
(A) reserved;
(B) the Borrowers shall have a pro forma Total Funded Debt to EBITDA Ratio for the 12-month period then ended of less than 5.75:1.00; provided provided, that for such foregoing calculation, “EBITDA” shall include, at Borrowers’ option, the projected EBITDA generated from Vessel 17 in an amount equal to $3,834,000; provided, further, (ix) if the First Lien Credit Agreement permits First Lien Incremental Term Loans and the proceeds thereof are to be used for the acquisition and construction costs and expenses in accordance with Section 5.15, then the Borrowers may only borrow First Lien Incremental Term Loans, so long as the Incremental Loans are at least thirty-six percent (36%) of the aggregate amount of the Incremental Loans and the First Lien Incremental Term Loans; and (y) if the proceeds of First Lien Incremental Loans are to be used for any purpose other than as set forth in foregoing clause (x), then the Borrowers may only borrow First Lien Incremental Term Loans, so long as the Incremental Loans are at least twenty percent (20%) of the aggregate amount of the Incremental Loans and the First Lien Incremental Term Loans; provided, however, if the Lenders hereunder decline their right to provide the required portion of Incremental Loans hereunder, then the Borrowers may borrow First Lien Incremental Term Loans without borrowing any Incremental Loans;
(C) no current Lender shall be obligated to provide an Incremental Loan, and any agreement to provide an Incremental Loan by any current Lender shall be in the sole discretion of such current Lender;
(D) Borrowers may not request the addition of a New Lender unless (and then only to the extent that) there is insufficient participation on behalf of the existing Lenders in the Incremental Loans being requested by Borrowers, evidenced by a written notice delivered to the Borrowers of such applicable existing Lender’s election not to provide an Incremental Loan;
(E) the aggregate original principal amount of all Incremental Loans shall not exceed US$22,500,000 (A) $400,000,000 (or US$32,500,000 in 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) event that the First Lien Indebtedness Ratio Credit Agreement has not been amended for any reason on or prior to the Incremental Funding Date, by the parties thereto to permit the borrowers under the First Lien Credit Agreement to borrow additional First Lien Term Loans in the amount of US$10,000,000);
(determined on a pro forma basis as of F) subject to the relevant determination date as if such Intercreditor Agreement, the Incremental Loans pursuant shall be on terms and conditions (including pricing terms) not less favorable than that provided to the Lenders that have made Term Loans;
(G) Borrowers may not request the Incremental Loans under this Section 2.01(c)(i)(B1.1(f) had been outstanding on the most recent period of four consecutive fiscal quartersmore than two (2) shall not be greater than (x) 3.50 to 1.00 at any time times during the period beginning commencing on the Fifth Restatement Effective Closing Date and ending on December 31the second (2nd) anniversary of the Closing Date;
(H) Borrowers shall deliver to Agent on or before the Incremental Funding Date the following documents in form and substance satisfactory to Agent: (1) an updated Annex I to be attached hereto, 2014 reflecting each applicable Lender’s Incremental Commitment, (2) certifications of their corporate secretaries with attached resolutions certifying that the Incremental Loans have been approved by such Borrowers, (3) certificate dated as of the Incremental Funding Date certifying that no Default or Event of Default shall have occurred and be continuing and certifying that the representations and warranties made by each Borrower herein and in the Loan Documents are true and complete in all material respects (unless already qualified by materiality in such specific provision) with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly relates only to any earlier and/or specified date), (4) executed agreements, instruments and information (including supplements or modifications to this Agreement and/or the Loan Documents executed by Borrowers as Agent reasonably deems necessary in order to document the Incremental Loans and to protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and Lenders hereunder and under the Loan Documents in light of the Incremental Loans, and (y5) 3.25 an opinion of counsel in form and substance reasonably satisfactory to 1.00 thereafter; Agent which shall cover such matters related to the Incremental Loans as Agent may reasonably require and each Borrower hereby authorizes and directs such counsel to deliver such opinions to Agent and Lenders;
(iiI) each Person which the Borrower shall request to make an Incremental Loan any New Lender shall be subject to the prior written consent of the Administrative Agent Agent;
(such consent not to be unreasonably withheld); (iiiJ) each tranche New Lender shall execute a lender joinder in substantially the form of Exhibit 1.1(f)(i)(G) pursuant to which such New Lender shall join and become a party to this Agreement and the Loan Documents with the 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 Commitment as set forth in clause such lender joinder;
(iK) 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 rank pari passu in right of payment and of security with the Average Life to Maturity of the Tranche B Term Loans (and, except that Incremental Loans shall be entitled with regard to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); pricing 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 1.1(f), shall be treated substantially the same as the Term Loans (including with respect to mandatory and Sections 5.02 voluntary repayments and 5.03 voting rights); and
(it being understood that L) on the Incremental Funding Date, Borrowers shall pay all references reasonable costs and expenses incurred by Agent and by each Increasing Lender and New Lender in connection with the negotiations regarding, and the preparation, negotiation, execution and delivery of all agreements and instruments executed and delivered by any of Agent, Borrowers and/or Increasing Lenders and New Lenders in connection with, such increase (including all fees for any supplemental or additional public filings of any Loan Documents necessary to “date protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and Lenders hereunder and under the Loan Documents in light 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 Agreementincrease).
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 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 from time to time after the Fifth Restatement Effective Datemay, by written notice to the Administrative Agent as provided belowfrom time to time, request from one or more Lenders existing or additional Lenders, all of which must be Eligible Assignees: (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)A) to (x) provide additional one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or increase the amount a new Class of their Term Loans (the “Incremental Term Loan Commitments”) and/or (yB) establish the establishment of one or more additional tranches of term loans hereunder new revolving credit commitments (collectivelyany 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). The Administrative Agent 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 Administrative Agent 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 Administrative Agent) 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 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 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 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) may participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayment of the other Term Loans (in the case of Incremental Term Loans) or Revolving Credit Loans (in the case of Incremental Revolving Credit Loans and/or Incremental Revolving Credit Loan Commitments) existing on the Incremental Facility Closing Date (but not greater than pro rata basis (except for prepayments in connection with a refinancing or pursuant to Section 2.13(h) or any prepayments of any Class of Loans or Commitments with an earlier Maturity Date than any other Class of Loans or 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 Loan Maturity Date, (C) the average life to maturity of the Other Term Loans shall be no shorter than the remaining 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 the All-In Yield applicable to such Other Term Loans shall not exceed 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 made on the Funding Date plus 50 basis points per annum unless the interest rate (Atogether with, as provided in the proviso below, the Adjusted LIBO Rate floor) $400,000,000 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 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”), to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to Section 7.01(m) plus (B) additional amounts so long as both at the time contrary, each of any such request and 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 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 Additional Covenants, 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 Borrower may revise this Agreement 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 evidence such TV/Radio Subsidiaryamendments. 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 Other Loans shall have the same guarantees as, and be madesecured on a pari passu basis with, (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.66
Appears in 1 contract
Sources: Credit Agreement (CSC Holdings LLC)
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 ▇▇▇▇▇▇▇▇) of four consecutive fiscal quarters) shall not be greater less than (x) 3.50 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 and in integral multiples of at least $5,000,000 and the aggregate principal amount of all New Loan Commitments after the Third Amendment Effective Date (or such lesser and excluding for the avoidance of doubt the Term A- 2 Loan Commitments) shall not exceed $100,000,000.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
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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.
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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, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (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 to this Section 2.01(c)(i)(BTerm Loan is made (and after giving effect thereto) had been outstanding on the most recent period no Event of four consecutive fiscal quarters) Default 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; exist;
(ii) each Person which immediately after giving effect to the Borrower shall request to make an borrowing of such Incremental Loan Term Loans or the establishment of such Revolving Commitment Increase, the Company shall be subject to in compliance with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); covenants 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 the aggregate amount of Incremental Term Loans requested under clause and Revolving Commitment Increases following the Effective Date shall not exceed $300,000,000 (xprovided that the Borrowers may obtain up to an additional $200,000,000 in the aggregate of Incremental Term Loans and/or Revolving Commitment Increases so long as immediately after giving effect to the borrowing of any such Incremental Term Loans or the establishment of any such Revolving Commitment Increase the Senior Debt Ratio would be less than or equal to 3.25 to 1.0);
(v) above that are Tranche A the aggregate amount of Incremental Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series Subsidiary Borrowers established following the Effective Date shall not be exceed $110,000,000;
(vi) any Incremental Term Loans (1) shall not mature earlier than the Tranche Term B Term 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, (3) shall have the interest rates, upfront fees and OID for any Series of Incremental Term Loans shall be greater as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; provided that if the Yield of any Series of Incremental Term Loans exceeds the 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 Series of Incremental Term Loans is established to the extent necessary to cause the Yield on the Term B Loans to be 50 basis points less than the Average Life to Maturity Yield on such Series of Incremental Term Loans;
(vii) in no event shall the Tranche B Incremental Term Loans (except that Incremental Loans shall of any Series be entitled to participateparticipate on a greater than pro rata basis with the Term A-1 Loans, Term A-2 Loans or Term B Loans then outstanding in any mandatory prepayment pursuant to this Agreement; and
(viii) except to the extent provided in Section 2.09(b)contemplated above, 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 all other terms of such any Incremental Loans and the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Term Loans shall either be substantially the same as the terms of the Term B Loans 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 Loans or Revolving Commitment Increases. Incremental Term Loans 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.
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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 (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.”
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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 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) 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 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 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, if the All-in Yield on such TV/Radio Subsidiary. Such notice shall specify Incremental Loans exceeds the initial All-in Yield for the Loans by more than 50 basis points (w) the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Loans shall automatically be increased by the Yield Differential, 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 the Loans as necessary to ensure the Incremental Loans are “fungible” with the existing Loans), (vi) the Incremental Loans may share ratably or Persons less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to provide 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
Sources: Senior Secured Term Loan Credit Agreement (XPO Logistics, 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 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.”
Appears in 1 contract
Incremental Loans. The (a) Subject to Section 2.21(c), the Borrower may at any time or from time to time may, not more than three times after the Fifth Restatement Effective Closing Date, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments in an aggregate 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; provided that if the related Incremental Loans are to be issued with original issue discount, the applicable Incremental Loan Assumption Agreement shall set forth the amount of such original issue discount (which discount shall apply to all such Incremental Loans and Section 9.20 shall be amended to reflect such original issue discount). The terms and provisions of the Incremental Loans shall not exceed be substantially identical to those of the Loans, except as otherwise set forth in the immediately succeeding sentence. Without the prior written consent of the Required Lenders, (Ai) $400,000,000 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 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 and (y) if the “effective interest rate margin” for such Other Loans as of the date of incurrence of such Other Loans (which, for purposes of calculating the “effective interest rate margin” only, shall be determined by the Administrative Agent and shall include all upfront or similar fees, rate floors or original issue discount (amortized over the life of such Other Loans) payable to all Lenders providing such Other Loans) exceeds the “effective interest rate margin” then applicable to existing outstanding Loans (determined on the same basis as provided in the immediately preceding parenthetical) by more than 50 basis points, the Applicable Margins for all then outstanding Loans shall be increased automatically as of such date by the amount of such excess (but only by the amount in excess of 50 basis points). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at Loan Assumption Agreement. Each of the time of any such request and 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.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied (it being agreed that, for purposes of this clause (i), any reference to the “Closing Date” in any such paragraph of Section 4.01 or in the lead-in language to Section 4.01 shall be deemed to be a reference to the applicable “Incremental Loan Closing Date”) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Borrower is otherwise in pro forma compliance with each of Sections 6.10, 6.11, 6.12 and 6.17, (iii) except as otherwise specified or required 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, public records and closing certificates (other than insurance certificates) reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iv) prior to such effectiveness, if the relevant Incremental Loan Maturity Date (A) is different from the Maturity Date, or (B) is different from the maturity date of the Loans specified in the Borrower Mortgage, as then in effect, the Borrower Mortgage shall have been amended (or, if necessary or reasonably deemed advisable by the Collateral Agent, amended and restated or otherwise modified) to confirm that the Borrower Mortgage secures the Obligations with respect to such Incremental Loans, and to reflect the Final Maturity Date, (v) on or prior to the date of such effectiveness, the title insurance company (or an agent therefor) that issued, in favor of the Collateral Agent, the lender’s original title insurance policy in connection with the Loans made on the Closing Date shall have issued (or executed and delivered to the Collateral Agent an irrevocable commitment to issue) in favor of the Collateral Agent, (A) such additional and/or replacement title insurance in an amount equal to (when combined with the amount of the original title insurance remaining in place) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans, and (B) such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent or any Lender (including any Lender that is not an Incremental Loan pursuant Lender), insuring such amended, amended and restated or otherwise modified Borrower Mortgage as a first lien on the Mortgaged Property (as defined therein), subject to this any Liens permitted by Section 2.01(c)(i)(B6.02 and otherwise no less favorable to the Lenders than the original title insurance issued on the Closing Date (with such changes as are necessary to comply with customary title insurance practices), (vi) the First Lien Indebtedness Leverage Ratio is less than 1.50 to 1.00, both prior to and after giving pro forma effect to the proposed Incremental Loans and (determined vii) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans does not exceed $120,000,000.
(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 forma basis as of the relevant determination date as if such Incremental Loans pursuant rata basis. This may be accomplished by requiring each outstanding Eurodollar borrowing to this Section 2.01(c)(i)(B) had been outstanding be converted into an ABR borrowing on the most recent period date 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 31each 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 2.19. 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 2.08(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.
Appears in 1 contract
Sources: Credit Agreement (Rentech Inc /Co/)
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 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.
Appears in 1 contract
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 greatersum of (x) the greater of (i) $150,000,000170,000,000 and (ii) 25.0100% of Consolidated EBITDA for the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 most recently ended Test Period (the “Incremental Starter Amount”) less any Permitted Additional and (y) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, the maximum amount of additional Indebtedness incurred 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 7.01(m8.1(a) plus 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 (B) additional amounts so long as both at the time of any such request and upon the effectiveness of assuming any Incremental Loan Amendment Revolving Credit Increase is fully drawn), to not exceed 3.50:1.00 (such amount, the “Incremental Incurrence Test Amount” and together with respect to an the Incremental Starter Amount, the “Incremental Facility Amount”) and (2) the total aggregate amount for each 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); provided that any amounts incurred under the Incremental Starter Amount concurrently with, or in a single transaction or series of related transactions with, amounts incurred under the Incremental Incurrence Test Amount will not count as Indebtedness for purposes of calculating the applicable ratio in the Incremental Incurrence Test Amount. 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 94 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 1 contract
Sources: Fourth Amendment and Lender Joinder Agreement (SYNAPTICS 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 Subject to Section 2.20, 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, by written notice Borrowers may request that the Lenders (or other Eligible Financial Institutions) offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental Loan") under this paragraph (c). In the Administrative Agent as provided below, request event that one or more of the Lenders (including Persons who or such other Eligible Financial Institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or Eligible Financial Institutions) and the Borrowers agree as to the amount of such commitments that shall be allocated to the respective Lenders (or Eligible Financial Institutions) making such offers and the fees (if any) to be payable by the Borrowers in connection therewith, such Lenders (or Eligible Financial Institutions) 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 respective Incremental Loan Commitments (and such Eligible Financial Institutions shall become "Lenders" and "Incremental Lenders" hereunder). The Incremental Loans and/or (y) establish to be made pursuant to any such agreement between the Borrowers and one or more additional tranches Incremental Lenders in response to any such request by the Borrowers shall be deemed to be a separate "Series" of term loans hereunder (collectivelyIncremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, the “Incremental Loans”); provided that (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 $25,000,000 and (ii) no borrowing of Incremental Loans shall not exceed be permitted if (after giving effect thereto) (x) the ratio of (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Total Consolidated Senior Secured Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at EBITDA for the time period of any four consecutive Fiscal Quarters ending on or more recently ended prior to the date of such request and upon the effectiveness borrowing would exceed 2.75 to 1 or (y) such borrowing would result in a breach of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to Section 6.11(b) or (c) of this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio Agreement (determined calculated on a pro forma basis after giving effect to such borrowing and as if the Determination Date for making such calculation were the date of such borrowing). On the occasion of each borrowing of Incremental Loans (and as a condition precedent thereto), the Lead Borrower shall deliver a certificate signed by a Financial Officer of the relevant determination date as if such Lead Borrower demonstrating in reasonable detail compliance with clause (ii) of the preceding sentence. Following the acceptance by the Borrowers of the offers made by any one or more Lenders or Eligible Financial Institutions to make any Series of Incremental Loans pursuant to the foregoing provisions of this Section 2.01(c)(i)(B) had been outstanding paragraph (c), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the most recent period terms and conditions of four consecutive fiscal quarters) shall not be greater than (x) 3.50 this Agreement, to 1.00 at any time make such Incremental Loans to the Borrowers during the period beginning on from and including the Fifth Restatement Effective Date date of such acceptance to and ending on December 31, 2014 and (y) 3.25 including the commitment termination date specified in the agreement entered into with respect 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 Series in an aggregate principal amount that is up to but not less than $10,000,000 (or such lesser exceeding the 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 Commitment 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 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 1 contract
Incremental Loans. The Borrower may at 84
(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 1 contract
Sources: Credit Agreement (SYNAPTICS Inc)
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 DateBorrower may request that the Lenders (or other financial institutions agreed to by the Borrower 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 (d). In the event that one or more of the Lenders (or such other financial institutions) offer, by written notice in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Borrower agree as to the Administrative Agent as provided belowamount 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 Borrower in connection therewith, request 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 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 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 $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000; provided that (A) the Incremental Loans (designated Tranche C Term Loans) made upon the Amendment No. 1 Effective Date shall be in addition to and not utilize such $500,000,000 limit, so long as the requirements set forth in the last sentence of the definition of "Incremental Loan Commitment" in Section 1.01 shall be satisfied in respect of such Loans and (B) the Additional Term A Loans made upon the Amendment No. 1 Effective Date shall not be deemed to be Incremental Loans for any purpose of this Agreement. 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 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 Borrower 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. The Incremental Loans (designated Tranche C Term Loans) upon the Amendment No. 1 Effective Date, may, at the option of an Incremental Loan Lender, be made through the conversion of existing Tranche B Term Loans into Incremental Loans of such Series as provided in the last sentence of the definition of "Incremental Loan Commitment" in Section 1.01 (and each reference in this Agreement to the making of any such Incremental Loans or words of similar import, shall in the case of such Lender be deemed to include such conversion). Thereafter, subject to the terms and conditions of this Agreement, the Borrower 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. (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.
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 from one or more Lenders existing or additional Lenders, all of which must be Eligible Assignees: (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)A) to (x) provide additional one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or increase the amount a new Class of their Term Loans (the “Incremental Term Loan Commitments”) and/or (yB) establish the establishment of one or more additional tranches of term loans hereunder new revolving credit commitments (collectivelyany such new commitments, the “Incremental LoansRevolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that , 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). The Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders. Such notice shall set forth (i) the aggregate amount of the Incremental Loans 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 Administrative Agent 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 exceed be less than 10 Business Days after the date of such notice), and (Aiii) $400,000,000 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 Starter AmountFacility Closing Date”), subject 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”) less in an amount equal to its Incremental Term Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term 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 Permitted Additional Indebtedness incurred 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 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 7.01(m9.04 (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 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”) plus (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) may participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayment of the other Term Loans (in the case of Incremental Term Loans) or Revolving Credit Commitments (in the case of Incremental Revolving Credit Loans and/or Incremental Revolving Credit Loan Commitments) existing on the Incremental Facility Closing Date (but not greater than pro rata basis (except for prepayments in connection with a refinancing or pursuant to Section 2.13(h) or any prepayments of any Class of Loans or Commitments with an earlier Maturity Date than any other Class of Loans or 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) additional amounts 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 Loan Maturity Date, (C) the average life to maturity of the Other Term Loans shall be no shorter than the remaining 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 prior to the date which is 12 months after the Closing Date, the All-In Yield applicable to such Other Term 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 the Initial Term Loans made on the Closing Date plus 50 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 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 on any Other Term Loan shall be effected, at the time Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of any (x) and (y) above, and (E) the other terms and documentation in respect of such request and Other Loans, to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, 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 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 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 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 evidenced thereby, 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 Borrower may revise this Agreement 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 evidence such TV/Radio Subsidiaryamendments. 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 Other Loans shall have the same guarantees as, and 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 Personssecured on a pari passu basis with, 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 AgreementLoans.
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
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 (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed (i) the aggregate greater of $250,000,000 and 100% of Consolidated EBITDA for the most recently completed four fiscal quarters for which financial statements have been delivered pursuant to Section 7.01(a) or (b) plus (ii) the maximum amount of Incremental Loans shall not Loan Commitments that could be incurred without causing the Secured Leverage Ratio to exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant 3.25 to Section 7.01(m) plus (B) additional amounts so long as both 1.00 at the time of and after giving effect to the incurrence thereof (assuming any such request and upon the effectiveness of Incremental Revolving Increase is fully funded); provided, that any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(BCommitments will first be counted against the basket contained in clause (1)(ii) above before being counted against 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 basket set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x1)(i) above that are Tranche A Term Loans, and (2) the total aggregate amount for each Incremental Loan Maturity Date of Commitment (and the Incremental Loans of any Series made thereunder) shall not be earlier less than the Tranche B Term Loan Maturity Date a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (except that the scheduled final maturity of or 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 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 (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition and agreed to by the Lenders providing such Incremental Term Loan, the foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 9.01(a), (f) or (g), shall be subject satisfied at the LCA Test Date related to such Limited Condition Acquisition);
(B) Subject to Section 1.07 in connection with an Incremental Term Loan to finance a Limited Condition Acquisition, 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) (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition, at the election of the Lenders providing such Incremental Term Loan, the foregoing condition (i) shall apply on the LCA Test Date and (ii) with respect to the funding date of any such Incremental Term Loan, may be limited to customary “specified” representations and warranties with respect to the Borrower and its Subsidiaries);
(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 Borrower may at any time or from time In order 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 from 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, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall must provide to each Lender Agent an irrevocable written request to make an Incremental (including by telecopier or other facsimile communication) substantially in the form of Exhibit A, by 10:00 a.m. (Chicago time) three Business Days before the requested date (the "Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iiiDate") 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 Loan, the requested Loan Date (which must be accelerated pursuant to Section 2.08(b)), a Business Day) and the Average Life requested amount of such Incremental Loan, which must be in a minimum amount of $1,000,000 and multiples thereof (or, if less, an amount equal to Maturity the Maximum Incremental Loan Amount). An Incremental Loan may only be requested from a Conduit Lender unless, in the case of an Uncommitted Conduit Lender, such Uncommitted Conduit Lender, in its sole discretion, determines not to make such Incremental Loan, in which case the Borrower may request such Incremental Loans shall be greater than Loan from the Average Life to Maturity of Related Bank Lenders. If the Tranche B Term Loans (except that Incremental Loans shall be entitled to participateLoan is requested from an Uncommitted Conduit Lender and such Uncommitted Conduit Lender determines, in its sole discretion, to make the extent provided in Section 2.09(b)requested Loan, in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), such Uncommitted Conduit Lender shall transfer to 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) Borrower's Account the amount of such Incremental Loans and Loan by no later than 1:00 p.m. (Chicago time) on the Person or Persons to provide such Incremental Loans, (x) the date on which such Incremental Loans shall be made, (y) Loan Date. If the Incremental Loan Maturity Date is requested from a Committed Conduit Lender or the Related Bank Lenders for a Lender Group, subject to Section 7.2 and the Incremental other terms and conditions hereof, such Committed Conduit Lender or the Related Bank Lenders for a Lender Group shall transfer the applicable Lender Group's Ratable Share of each Loan Principal Payment Dates (if any) for such Incremental Loans and (z) and, in the Applicable Margin that will apply to such Incremental Loans and (if applicable) the rate case of the commitment feeeach Related Bank Lender, if any, payable by the Borrower in respect its Commitment Percentage 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 its 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 Group's Ratable Share of such Incremental Loan) into the Borrower's Account by no later than 1:00 p.m. (Chicago time) on the 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 AgreementDate.
Appears in 1 contract
Sources: Receivables Loan Agreement (Eagle Picher Technologies LLC)
Incremental Loans. (a) The Borrower may at any time or Borrowers may, by written notice delivered to the Administrative Agent from time to time on one or more occasions after the Fifth Restatement Effective Closing Date, request Incremental Commitments in an aggregate principal amount for all such Incremental Commitments of up to (i) $10,000,000 (which shall not be reduced by written any amount incurred in reliance on clause (ii) below) 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 Total 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”); provided that the Borrowers may elect to use this clause (ii) prior to clause (i) above, and if both clause (i) above and this clause (ii) are available and the Borrowers do not make an election, the Borrowers will be deemed to have elected this clause (ii). 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 or such lesser amount equal to the remaining Incremental Loan Amount), (y) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 5 Business Days nor more than 60 days after the date of such notice, unless the Administrative Agent shall otherwise agree and (z) whether such Incremental Commitments are commitments to make 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, “Specified Incremental Loan Commitments”), as applicable.
(b) The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as provided below, request one or more Lenders (including Persons who the Administrative Agent shall become reasonably specify to evidence the Incremental Lenders pursuant Commitment of each Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Loans 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”)be made thereunder; provided that (i) without the aggregate amount prior written consent of Incremental Loans shall not exceed the Required Lenders,
(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 final maturity date 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 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 (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 Incremental Term Loans shall be greater no shorter than the Weighted Average Life to Maturity of the Tranche B Term Loans;
(B) the final maturity date of any Incremental Revolving Loans shall be no earlier than a date to be determined by the Borrowers and the Incremental Lenders (but not later than five years after the Closing Date) (such date, the “Incremental Revolving Credit Maturity Date”);
(C) the interest rate margins applicable to any Incremental Term Loan or any Incremental Revolving Loan will be determined by the Borrowers and the applicable Incremental Lenders; provided that
(I) solely for the benefit of the Term Loans incurred on the Closing Date and the Additional U.S. Term Loans incurred on the First Restatement Date, if the initial yield on such Incremental Loan (as reasonably determined by the Administrative Agent in consultation with the Borrowers to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Loans on the date such Loans are made would exceed the LIBO Rate for a three-month Interest Period commencing on such date) and (y) if such Loans are initially made with OID, the amount of such OID divided by the lesser of (A) the average life to maturity (expressed in years) of such Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”) the sum of (A) the Applicable Rate then in effect for Eurodollar Term Loans (except which shall be increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans, on the date such Incremental Loans shall be entitled are made would exceed the Adjusted LIBO Rate for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to participate, to all of the extent provided in Section 2.09(bLenders providing such Incremental Loans), 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 (wB) the amount of such the OID initially paid in respect of the Term Loans, divided by four, then the Applicable Rate then in effect for the Term Loans shall automatically be increased by the Incremental Loans and Yield Differential, effective upon the Person or Persons to provide such making of the Incremental Loans, and
(II) solely for the benefit of the Incremental Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date, if the initial yield on such additional Incremental Revolving Loans (if documented as a separate tranche) (as reasonably determined by the Administrative Agent in consultation with the Borrowers to be equal to the sum of (x) the date margin above the Adjusted LIBO Rate on such additional Incremental Revolving Loans (which such Incremental Loans shall be made, increased by the amount that any “LIBOR floor” applicable to such additional Incremental Revolving Loans on the date such additional Incremental Revolving Loans are made would exceed the LIBO Rate for a three-month Interest Period commencing on such date) and (y) if such additional Incremental Revolving Loans are initially made with OID, the amount of such OID divided by the lesser of (A) the average life to maturity (expressed in years) of such additional Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Revolving Loans and (zB) four) exceeds by more than 50 basis points, the sum of (A) the Applicable Margin Rate then in effect for the existing Eurodollar Revolving Loans (which shall be increased by the amount that will apply any “LIBOR floor” applicable to such Eurodollar Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date on the date such additional Incremental Revolving Loans are made would exceed the Adjusted LIBO Rate for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to all of the Lenders providing such additional Incremental Revolving Loans), and (if applicableB) the rate amount of the commitment fee, if any, payable by the Borrower OID initially paid in respect of the commitment to make such Incremental existing Revolving Loans, together divided by four, then the Applicable Rate then in effect for the existing Incremental Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date shall automatically be increased by the Incremental Yield Differential, effective upon the making of the additional Incremental Revolving Loans;
(D) all representations and warranties set forth in Article III and in each other Loan Document shall be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Assumption Agreement and with the same effect as though made on and as of such date; provided that to the extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true, correct and complete in all respects as of such earlier date; provided, further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be; and provided further that if the proceeds of Incremental Loans are to be used to finance a Permitted Acquisition, in lieu of the condition set forth in this clause (D) only “specified representations” pursuant to customary “SunGard” or “certain funds” conditionality (conformed as necessary for such Permitted Acquisition) shall be required to be true and correct in all material respects;
(E) no Default or Event of Default shall exist or would exist immediately after giving effect thereto; provided that if the proceeds of Incremental Loans are to be used to finance a Permitted Acquisition, in lieu of the condition set forth in this clause (E), no Incremental Loan may be made if any Event of Default under Sections 8.01(b), (c), (g) or (h) exists or would result therefrom;
(F) the Incremental Loans shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing the existing Loans, and;
(G) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid; and (ii) all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Term Loans or Revolving Loans, as applicable (except those terms forth in clauses (i)(A), (B), (C) and (F) above), shall be reasonably satisfactory to the Administrative Agent; provided that, for the avoidance of doubt, synthetic letter of credit facilities shall be permitted to be requested as Incremental Term Loan Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 Commitments and the Incremental Loans evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.24 unless the Administrative Agent shall have received legal opinions, board resolutions and other information closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, other than changes to such legal opinions resulting from a change in connection therewithlaw, change in fact or change to counsel’s form of opinion that are reasonably satisfactory to the Administrative Agent.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrowers, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Specified Incremental Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans or Term Loans, as applicable, on a pro rata basis. Amounts prepaid 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 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 Assumption Agreement. In addition, to the extent any Incremental Term Loans are Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), as the case may be, required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(e) The Borrowers may seek commitments in respect of Incremental Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender from existing Lenders (each of which shall be obligated entitled to provide any Incremental Loans. Any Person agree or Persons shall become an Incremental Lender hereunder upon execution and delivery decline to the Administrative Agent of an Incremental Loan Amendment (participate in form reasonable satisfactory to its sole discretion) and, in consultation with the Administrative Agent) by such Person or Persons, the Borrower additional banks, financial institutions and the Administrative Agentother institutional lenders who will become Lenders in connection therewith; provided that the effectiveness of such Incremental Loan Amendment Administrative Agent shall have consent rights (not to 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” unreasonably withheld or similar language in Section 5.02 shall be deemed to refer to the effective date of such Incremental Loan Amendmentdelayed) and such other conditions as the parties with respect to such Incremental Loan Amendment shall agree. The Incremental Loans made additional Lenders, if such consent would be required pursuant to the same Incremental Loan Amendment shall be deemed Section 9.04 for an assignment of loans or commitments, as applicable, to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementsuch additional Lender.
Appears in 1 contract
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Incremental Loans. The Any Borrower may at any time or from time to time after the Fifth Second 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 (x) 3.50 applicable so long as no Event of Default existed at the time the acquisition agreement relating 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; such Acquisition was entered into;
(ii) each Person which immediately after giving effect to the Borrower shall request to make an borrowing of such Incremental Loan Term Loans or the establishment of such Revolving Commitment Increase, 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 25,000,000 and shall be in an increment of $1,000,000;
(or such lesser iv) the aggregate amount that represents all of Incremental Term Loans and Revolving Commitment Increases following the remaining availability under the limits set forth in clause Second RestatementAmendment No. 1 Effective Date shall not exceed an amount equal to (i) above$500,000,000 less (ii) the aggregate principal amount of Indebtedness incurred prior to such time in reliance on Section 7.01(c); ;
(ivv) except for any Incremental Term Loans requested under clause (x1) above that are Tranche A Term Loans, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be mature earlier than the Tranche B Term Revolving Credit Termination Date, (2) shall not amortize in an amount that exceeds 20% percent of the aggregate principal amount of suchTerm 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 A Loans per annum 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 Loans Lenders providing the applicable Series of Incremental Term Loans;
(vi) in no event shall be greater than the Average Life to Maturity of the Tranche B Incremental Term Loans (except that Incremental Loans shall of any Series be entitled to participate, to participate on a greater than pro rata basis with the extent provided Term A Loans then outstanding in Section 2.09(b), in any 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 prepayment 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 1 contract
Incremental Loans. The Borrower (a) Subject to the terms and conditions set forth herein:
(i) each of the Incremental Term A Loan Lenders, as applicable, hereby severally (i) commits to provide Amendment No. 2 Date Incremental Term A Loans and Delayed Draw Term A Loans to the Borrowers in Dollars in an amount equal to its “Amendment No. 2 Date Incremental Term A Loan Commitment” and/or to its “Delayed Draw Term A Commitment” set forth next to such Incremental Term A Loan Lender’s name in Schedules 2-A and 2-B hereto, respectively, and (ii) agrees (x) on the Amendment No. 2 Closing Date, to fund Amendment No. 2 Date Incremental Term A Loans to the Borrowers in the amount of its Amendment No. 2 Date Incremental Term A Loan Commitment, which Amendment No. 2 Date Incremental Term A Loan Commitment shall terminate in full upon the making of the Amendment No. 2 Date Incremental Term A Loans on the Amendment No. 2 Closing Date and (y) during the Delayed Draw Term A Loan Availability Period, to fund Delayed Draw Term A Loans to the Borrowers in the amount of its Delayed Draw Term A Commitment (as such amount may at any time or be modified from time to time after in accordance with 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)Amended Credit Agreement) 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 terms 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 Amended Credit Agreement. Amendment shall agreeNo. 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.2
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 from one or more Lenders existing or additional Lenders, all of which must be Eligible Assignees: (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)A) to (x) provide additional one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or increase the amount a new Class of their Term Loans (the “Incremental Term Loan Commitments”) and/or (yB) establish the establishment of one or more additional tranches of term loans hereunder new revolving credit commitments (collectivelyany 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). The Administrative Agent 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 Administrative Agent 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 Administrative Agent) 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 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 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 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) may participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayment of the other Term Loans (in the case of Incremental Term Loans) or Revolving Credit Loans (in the case of Incremental Revolving Credit Loans and/or Incremental Revolving Credit Loan Commitments) existing on the Incremental Facility Closing Date (but not greater than pro rata basis (except for prepayments in connection with a refinancing or pursuant to Section 2.13(h) or any prepayments of any Class of Loans or Commitments with an earlier Maturity Date than any other Class of Loans or 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 Loan Maturity Date, (C) the average life to maturity of the Other Term Loans shall be no shorter than the remaining 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 the All-In Yield applicable to such Other Term Loans shall not exceed 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 made on the Funding Date plus 50 basis points per annum unless the interest rate (Atogether with, as provided in the proviso below, the Adjusted LIBO Rate floor) $400,000,000 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 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”), to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to Section 7.01(m) plus (B) additional amounts so long as both at the time contrary, each of any such request and 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 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 Additional Covenants, 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 Borrower may revise this Agreement 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 evidence such TV/Radio Subsidiaryamendments. 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 Other Loans shall have the same guarantees as, and 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 Personssecured on a pari passu basis with, 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 AgreementLoans.
Appears in 1 contract
Sources: Credit Agreement (Altice USA, 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 (ii), 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
Sources: Credit Agreement (Lindblad Expeditions Holdings, 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 Closing 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 $10,000,000 (which shall not be reduced by any amount incurred in reliance on clause (ii) below) 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 Total Net Leverage Ratio calculated on a Pro Forma Basis shall be equal to or increase the amount of their Term Loans and/or less than 3.50 to 1.00 (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental LoansLoan Amount”); 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 Borrowers may elect 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 use 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; clause (ii) each Person which the Borrower shall request prior 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 , and if both clause (xi) above that and this clause (ii) are Tranche A Term Loansavailable and the Borrowers do not make an election, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not Borrowers will be earlier than the Tranche B Term Loan Maturity Date deemed to have elected this clause (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(bii)), 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 set forth (wx) 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 or such lesser amount equal to the remaining Incremental Loans and the Person or Persons to provide such Incremental LoansLoan Amount), (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, (y) unless the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans Administrative Agent shall otherwise agree 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 Loans, additional 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 Borrower may at any time or (a) Subject to the terms and conditions hereof, each Incremental Dollar Lender severally agrees to make loans in Dollars on a revolving credit basis to the Company ("Incremental Dollar Loans") from time to time during the period from August 18, 2000 to and including the Incremental Commitment Termination Date; provided, that no Incremental Dollar Loan shall be made if, after the Fifth Restatement Effective Date, by written notice giving effect to the Administrative Agent as provided belowmaking of such Loan and the simultaneous application of the proceeds thereof, 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 sum of 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 Domestic Revolving Credit Exposure of all the time of any such request Domestic Lenders 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 aggregate principal amount outstanding of the relevant determination date as if such Incremental Dollar Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on would exceed 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; Domestic Borrowing Base then in effect or (ii) the aggregate principal amount outstanding of the Incremental Dollar Loans would exceed the Incremental Dollar Credit Commitments; and provided, further, that the making of each Person which the Borrower shall request to make an Incremental Dollar Loan shall be subject to the prior consent Domestic Revolving Credit Commitments , being fully utilized (except to the extent a portion thereof may be reasonably reserved by the Borrower to meet its expected requirements for the issuances of Letters of Credit.) Amounts borrowed under this subsection 3A.1(a) may be repaid in whole or in part and, up to but excluding the Administrative Agent Incremental Commitment Termination Date, reborrowed, all in accordance with the terms and conditions hereof. The Incremental Dollar Loans may from time to time be (such consent not to be unreasonably withheld); i) Eurodollar Loans, (ii) ABR Loans or (iii) each tranche a combination thereof, as determined by the Company and set forth in the notice of Incremental Loans borrowing or notice of conversion with respect thereto; provided, that (x) no Eurodollar Loan shall be made after the day that is one month prior to the Incremental Commitment Termination Date and (y) any Incremental Dollar Loans to be made on August 18, 2000 shall be made entirely as ABR Loans.
(b) Subject to the terms and conditions hereof, each Incremental Sterling Lender severally agrees to make loans in an Pounds Sterling on a revolving credit basis to the UK Borrower ("Incremental Sterling Loans" and, together with the Incremental Dollar Loans, the "Incremental Loans") from time to time during the period from August 18, 2000 to and including the Incremental Commitment Termination Date; provided, that no Incremental Sterling Loan shall be made if, after giving effect to the making of such Loan and the simultaneous application of the proceeds thereof, (i) the sum of the aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under UK Revolving Credit Exposure of all the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, UK Lenders and the Incremental Loan Maturity Date aggregate principal amount outstanding of the Incremental Sterling Loans of any Series shall not be earlier than would exceed the Tranche B Term Loan Maturity Date UK Borrowing Base then in efffect or (except that ii) the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity aggregate principal amount outstanding of the Incremental Sterling Loans shall be greater than would exceed 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)Sterling Credit Commitments; and (v) except as otherwise provided in Section 6.09(a)provided, 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 Loansfurther, (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 making of such each Incremental Sterling Loan Amendment shall be subject to the satisfaction of each of UK Revolving Credit Commitments being fully utilized. Amounts borrowed under this subsection 3A.1(b) may be repaid in whole or in part and, up to but excluding the Incremental Commitment Termination Date, reborrowed, all in accordance with the terms and conditions hereof. The Incremental Sterling Loans may from time to time be (i) Domestic Sterling Loans, (ii) Sterling Base Rate Loans or (iii) a combination thereof, as determined by the UK Borrower and set forth in this Section and Sections 5.02 and 5.03 the notice of borrowing or notice of conversion with respect thereto; provided, that (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 x) no Domestic Sterling Loan shall be deemed to refer made after the day that is one month prior to the effective date of such Incremental Loan AmendmentCommitment Termination Date and (y) and such other conditions as the parties any Incremental Sterling Loans to such Incremental Loan Amendment shall agree. The Incremental Loans be made pursuant to the same Incremental Loan Amendment on August 18, 2000 shall be deemed to be a separate series (each a “Series”) of Incremental Loans for all purposes of this Agreementmade entirely as Sterling Base Rate Loans.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Remington Products Co LLC)
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. The Borrower may at any time or from time to time after the Fifth Fourth 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 establishment 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 to be used solely for the purposes permitted under Section 6.08(d)(i) (the “General Incremental Loans”) shall not exceed (A$300,000,000 and the aggregate amount of Incremental Loans to be used solely for the purposes permitted under Section 6.08(d)(ii) $400,000,000 (the “Specified Incremental Starter AmountLoans”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(mshall not exceed $200,000,000; (ii) 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)(BLoan, (A) no Default shall exist and (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 3.00 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; (iiiii) 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); (iiiiv) 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); (ivv) 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); (vi) the availability of the Specified Incremental Loans shall be reduced on a dollar-for-dollar basis by the outstanding amount of Indebtedness incurred pursuant to Section 7.01(k)in excess of $150,000,000; and (vvii) 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 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 (a) Borrower may may, at any time or from time to time after the Fifth Restatement Effective DateClosing Date but prior to the date which falls nine (9) months after the Closing Date (provided such period may be extended by no more than three (3) months with the consent of Administrative Agent, which consent shall not be unreasonably withheld or delayed provided that Borrower is working diligently with a proposed Incremental Lender to provide a Commitment Increase), by written notice to the Administrative Agent as provided below(a “Commitment Increase Notice”), request (i) 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 the Tranche A Construction Loan Commitments up to an aggregate amount not exceeding $19,000,000 in the aggregate and not less than $5,000,000 individually per request (yor such lesser amount as shall be approved by Administrative Agent) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental LoansTranche A Construction Loan Commitment Increase”); 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 Tranche A Construction Loan Amendment with respect Commitment Increase shall be accompanied by a dollar-for-dollar increase in the Term Loan Commitment to be held by the Person holding the Tranche A Construction Loan Commitments subject of the Incremental Tranche A Construction Loan Commitment Increase and provided further that no more than two Incremental Lenders may be allocated an Incremental Tranche A Construction 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 31Increase, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which one or more increases in the Borrower shall request to make an Incremental Loan shall be subject to the prior consent amount of the Administrative Agent (such consent not Tranche B Construction Loan Commitments up to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not exceeding $30,250,000 in the aggregate and not less than $10,000,000 5,000,000 individually per request (or such lesser amount that represents all of as shall be approved by Administrative Agent) (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 Construction Loan Maturity Date (except Commitment Increase”) provided that the scheduled final maturity of such no more than two Incremental Loans Lenders may be accelerated pursuant to Section 2.08(b)), allocated an Incremental Tranche B Construction Loan Increase and (iii) one or more increases in the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity amount of the Tranche B Term Loans C Loan Commitments up to an aggregate amount not exceeding $31,500,000 in the aggregate and not less than $5,000,000 individually per request (except that Incremental Loans or such lesser amount as shall be entitled to participateapproved by Administrative Agent) (the “Incremental Tranche C Commitment Increase” and, to together with the extent Incremental Tranche A Construction Loan Commitment Increase and the Incremental Tranche B Construction Loan Commitment Increase, each a “Commitment Increase”) provided in Section 2.09(b), in mandatory prepayments); and that no more than two Incremental Lenders may be allocated an Incremental Tranche C Loan Increase.
(vb) 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 Each Commitment Increase 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 Borrower proposes that a Commitment Increase shall be madeeffective, which shall be a date not less than 10 Banking Days after the date on which such notice is delivered to the Administrative Agent and (yii) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Loan Maturity Date Lender”) to whom Borrower proposes any portion of such Commitment Increase be allocated and the Incremental Loan Principal Payment Dates (if any) for amounts of such Incremental Loans allocations; provided that the Administrative Agent may elect or decline to arrange such Commitment Increase in its sole discretion and (z) the Applicable Margin that will apply any Lender approached to such Incremental Loans and (if applicable) the rate provide all or a portion of the commitment feeCommitment Increase may elect or decline, if anyin its sole discretion, payable by the Borrower to participate in such Commitment Increase.
(c) Commitments in respect of the commitment Commitment Increases shall become Commitments (or, in the case of a Commitment Increase of a Class of Commitments to make be provided by an existing Lender with a Commitment of such Class, an increase in such Lender’s Commitments of such Class) under this Credit Agreement pursuant to an amendment (an “Incremental LoansAmendment”) to this Credit Agreement executed by Borrower, together with such other information reasonably requested by the Administrative Agent and each Incremental Lender (with the consent of no other Lender or Secured Party being required) which provides solely for (A) the increase in connection therewith. Amounts prepaid the Commitments of the applicable Class (including an increase in the Term Loan Commitments where the applicable increase is in respect of Incremental Loans the Tranche A Construction Loan Commitments), (B) a proportionate decrease in the amounts of Commitment Increases which Borrower may not be reborrowed. Notwithstanding anything herein request under Section 2.17(a), (C) amendments to the contrary, no definitions of “Proportionate Share (Commitment)” and “Proportionate Share (Loans)” to reflect the relative unfunded Commitments of the Lenders and the Incremental Lender shall be obligated and (D) the joinder of the Incremental Lender to provide this Credit Agreement. The effectiveness of any Incremental Loans. Any Person or Persons shall become Amendment (1) relating to: (i) an Incremental Lender hereunder upon execution and delivery to the Administrative Agent of an Incremental Tranche A Construction 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 Increase shall be subject to the satisfaction of each the conditions set forth in Sections 3.3(g), (h) and (i); (ii) an Incremental Tranche B Construction Loan Commitment Increase shall be subject to the satisfaction of the conditions set forth in this Section Sections 3.3(g), (h) and (i) and (iii) an Incremental Tranche C Loan Commitment Increase shall be subject to the satisfaction of the conditions set forth in Sections 5.02 3.5(i), (j) and 5.03 (it k) and 3.6(g), (h) and (n), (2) shall be subject to the condition that Administrative Agent has received an Updated Base Case Projections in form and substance reasonably satisfactory to Administrative Agent, which Updated Base Case Projections shall demonstrate that the requested Commitment Increase will not reduce the Projected Debt Service Coverage Ratio according to (i) the P50 Production Scenario to less than 1.40:1.00, on a minimum quarterly and on an average quarterly basis and (ii) the P99 Production Scenario to less than 1.00:1.00, on a minimum quarterly and on an average quarterly basis, (3) shall be subject to the condition that no Default or Event of Default shall exist on such date of effectiveness before or after giving effect to such Commitment Increase and (4) shall be subject to the condition that such Incremental Lender is entitled to receipt of any required reliance letters in respect of the legal opinions provided to Administrative Agent pursuant to Sections 3.1(l) and 3.5(l), as applicable.
(d) On the first date on which Borrower requests any Loans following the effectiveness of an Incremental Amendment with respect to an Incremental Tranche A Construction Loan Increase, Borrower shall request that the Tranche A Lenders make a Tranche A Construction Loan in an amount at least equal to the full amount of the Incremental Tranche A Construction Loan Increase with the proceeds thereof in an amount equal to such Incremental Tranche A Construction Loan Increase being understood applied (i) first, to repay Member Loans outstanding on the Closing Date or as otherwise permitted by the Majority Lenders (provided that (x) the proceeds of such Member Loans had been used to pay Project Costs in respect of the Projects and (y) in the event that Total Completion and Completion (Salmon Falls) have not yet occurred, sufficient monies have been reserved in an Account to pay all references remaining Project Costs in order to “achieve Total Completion and Completion (Salmon Falls) in accordance with the Project Schedules and Project Budgets), (ii) second, in the event that such Loans are made after the Term Conversion Date, to reimburse Equity Contributions, in an amount, without duplication, not to exceed the positive difference between the Equity Contribution and the amount required to maintain the Debt to Equity Ratio of 70:30, in each case calculated as of the date of such Borrowing” or similar language Loan and (iii) third, to deposit any remaining proceeds in the Revenue Account, for application solely for the purposes and in the order and manner provided in the Depositary Agreement. In addition, the repayment of Member Loans and reimbursement of any Equity Contribution in accordance with this Section 5.02 shall be deemed to refer 2.17(d) is subject to the effective condition that all Reserve Account Requirements (if applicable) have been satisfied.
(e) On the first date on which Borrower requests any Loans following the effectiveness of an Incremental Amendment with respect to an Incremental Tranche B Construction Loan Increase, Borrower shall request that the Tranche B Lenders make a Tranche B Construction Loan in an amount at least equal to the full amount of the Incremental Tranche B Construction Loan Increase with the proceeds thereof in an amount equal to such Incremental Tranche B Construction Loan Increase being applied (i) first, to repay Member Loans outstanding on the Closing Date or as otherwise permitted by the Majority Lenders (provided that (x) the proceeds of such Member Loans had been used to pay Project Costs in respect of the Projects and (y) in the event that Total Completion and Completion (Salmon Falls) have not yet occurred, sufficient monies have been reserved in an Account to pay all remaining Project Costs in order to achieve Total Completion and Completion (Salmon Falls) in accordance with the Project Schedules and Project Budgets), (ii) second, in the event that such Loans are made after the Term Conversion Date, to reimburse Equity Contributions, in an amount, without duplication, not to exceed the positive difference between the Equity Contribution and the amount required to maintain the Debt to Equity Ratio of 70:30, in each case calculated as of the date of such Incremental Loan Amendmentand (iii) third, to deposit any remaining proceeds in the Revenue Account, for application solely for the purposes and such other conditions as in the parties to such Incremental Loan Amendment shall agreeorder and manner provided in the Depositary Agreement. The Incremental In addition, the repayment of Member Loans made pursuant and reimbursement of any Equity Contribution in accordance with this Section 2.17(e) is subject to the same Incremental Loan Amendment shall be deemed to be a separate series condition that all Reserve Account Requirements (each a “Series”if applicable) of Incremental Loans for all purposes of this Agreementhave been satisfied.
Appears in 1 contract
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 prior to the Fifth Restatement Effective Incremental Loan Commitment Termination Date, by written notice the Borrower may request that the Lenders offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental Loan") under this paragraph (c). In the Administrative Agent as provided below, request event that 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 Lenders offer, in their sole discretion, to enter into 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 commitments, and ending on December 31, 2014 such Lenders and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request agree as 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 commitments that shall be allocated to the respective Lenders making such offers 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 fees (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, be payable by the Borrower in respect of the commitment connection therewith, such Lenders shall become obligated 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 under this Agreement in an amount equal 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 amount of an their respective 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 agreeCommitments. The Incremental Loans to be made pursuant to any such agreement between the same Incremental Loan Amendment Borrower and one or more Lenders in response to any such request by the Borrower 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 $5,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and Incremental Loans shall not exceed $100,000,000. 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 Section 2.01(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 Borrower in Dollars during the period from and including the date of such acceptance to but excluding the Incremental Loan Commitment Termination Date 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 Borrower 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 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 (a) Subject to Section 2.21(c), the Borrower may at any time or from time to time may, not more than three times after the Fifth Restatement Effective Closing Date, by written notice to the Administrative Agent as provided belowfrom time to time, request Incremental Loan Commitments in an aggregate 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; provided that if the related Incremental Loans are to be issued with original issue discount, the applicable Incremental Loan Assumption Agreement shall set forth the amount of such original issue discount (which discount shall apply to all such Incremental Loans and Section 9.20 shall be amended to reflect such original issue discount). The terms and provisions of the Incremental Loans shall not exceed be substantially identical to those of the Loans, except as otherwise set forth in the immediately succeeding sentence. Without the prior written consent of the Required Lenders, (Ai) $400,000,000 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 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 and (y) if the “effective interest rate margin” for such Other Loans as of the date of incurrence of such Other Loans (which, for purposes of calculating the “effective interest rate margin” only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Other Loans) payable to all Lenders providing such Other Loans) exceeds the “effective interest rate margin” then applicable to existing outstanding Loans (determined on the same basis as provided in the immediately preceding parenthetical), the Applicable Margins for all then outstanding Loans shall be increased automatically as of such date by the amount of such excess (the “Yield Differential”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both at Loan Assumption Agreement. Each of the time of any such request and 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.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied (it being agreed that, for purposes of this clause (i), any reference to the “Closing Date” in any such paragraph of Section 4.01 or in the lead-in language to Section 4.01 shall be deemed to be a reference to the applicable “Incremental Loan Closing Date”) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) except as otherwise specified or required 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, public records and closing certificates (other than insurance certificates) reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iii) prior to such effectiveness, if the relevant Incremental Loan Maturity Date (A) is different from the Maturity Date, or (B) is different from the maturity date of the Loans specified in the Borrower Mortgage, as then in effect, the Borrower Mortgage shall have been amended (or, if necessary or reasonably deemed advisable by the Collateral Agent, amended and restated or otherwise modified) to confirm that the Borrower Mortgage secures the Obligations with respect to such Incremental Loans, and to reflect the Final Maturity Date, (iv) on or prior to the date of such effectiveness, the title insurance company (or an agent therefor) that issued, in favor of the Collateral Agent, the lender’s original title insurance policy in connection with the Loans made on the Closing Date shall have issued (or executed and delivered to the Collateral Agent an irrevocable commitment to issue) in favor of the Collateral Agent, (A) such additional and/or replacement title insurance in an amount equal to (when combined with the amount of the original title insurance remaining in place) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans, and (B) such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent or any Lender (including any Lender that is not an Incremental Loan pursuant Lender), insuring such amended, amended and restated or otherwise modified Borrower Mortgage as a first lien on the Mortgaged Property (as defined therein), subject to this any Liens permitted by Section 2.01(c)(i)(B6.02 and otherwise no less favorable to the Lenders than the original title insurance issued on the Closing Date (with such changes as are necessary to comply with customary title insurance practices), (v) the First Lien Indebtedness Ratio (determined on a pro forma basis as aggregate principal amount of the relevant determination date as if such Loans outstanding after giving effect to the proposed Incremental Loans pursuant to this Section 2.01(c)(i)(BLoan Commitments and the corresponding borrowing with respect thereto would not exceed $50,000,000, and (vi) had been outstanding on Consolidated EBITDA for the most recent period of four consecutive fiscal quarters) shall not quarters most recently ended on or prior to the date the proposed Incremental Loan Commitments would be effective is equal to or greater than $50,000,000.
(xd) 3.50 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 1.00 at any time during the period beginning 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 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 2.19. 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 2.08(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.
Appears in 1 contract
Sources: Credit Agreement (Rentech Inc /Co/)
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 DateBorrower may request that the Lenders (or other financial institutions agreed to by the Borrower 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 (d). In the event that one or more of the Lenders (or such other financial institutions) offer, by written notice in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Borrower agree as to the Administrative Agent as provided belowamount 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 Borrower in connection therewith, request 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 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 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 $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000; provided that (A) the Incremental Loans (designated Tranche D Term Loans) made upon the Amendment No. 2 Effective Date and the Tranche C Term Loans shall be in addition to and not utilize such $500,000,000 limit, so long as the requirements set forth in the last sentence of the definition of "Incremental Loan Commitment" in Section 1.01 shall be satisfied in respect of such Loans and (B) the Additional Tranche Term A Loans made upon the Amendment No. 1 Effective Date shall not be deemed to be Incremental Loans for any purpose of this Agreement. 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 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 Borrower 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. The Incremental Loans (designated Tranche D Term Loans) upon the Amendment No. 2 Effective Date, may, at the option of an Incremental Loan Lender, be made through the conversion of existing Tranche C Term Loans into Incremental Loans of such Series as provided in the last sentence of the definition of "Incremental Loan Commitment" in Section 1.01 (and each reference in this Agreement to the making of any such Incremental Loans or words of similar import, shall in the case of such Lender be deemed to include such conversion). Thereafter, subject to the terms and conditions of this Agreement, the Borrower 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. (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 Closing 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 $10,000,000 (which shall not be reduced by any amount incurred in reliance on clause (ii) below) 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 Total Net Leverage Ratio calculated on a Pro Forma Basis shall be equal to or increase the amount of their Term Loans and/or less than 4.00 to 1.00 (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental LoansLoan Amount”); 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 Borrowers may elect 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 use 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; clause (ii) each Person which the Borrower shall request prior 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 , and if both clause (xi) above that and this clause (ii) are Tranche A Term Loansavailable and the Borrowers do not make an election, the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not Borrowers will be earlier than the Tranche B Term Loan Maturity Date deemed to have elected this clause (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(bii)), 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 set forth (wx) 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 or such lesser amount equal to the remaining Incremental Loans and the Person or Persons to provide such Incremental LoansLoan Amount), (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, (y) unless the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans Administrative Agent shall otherwise agree 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 Loans, additional 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 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 Date, by written notice to the Administrative Agent as provided below, Company may request that any one or more of the Lenders or, at the option of the Company, other financial institutions or funds selected by the Company offer to enter into commitments to make additional revolving Incremental Loans, in Dollars, under this paragraph (including Persons who 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 Company 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 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”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 Company 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) immediately after giving effect to the establishment of each Incremental Loan Commitment, the sum of the Net Commitment Increase Amount plus the Net Incremental Increase Amount plus the aggregate undrawn amount of all Secured LOCs shall not exceed $225,000,000. 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 Lenders of such Series, the Company and (other than in the case of any commitment reduction schedule or maturity date) the Administrative Agent (which agreement by the Administrative Agent shall not be unreasonably withheld), 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 Guaranteed Obligation, (ii) the maturity for 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 Company and such Incremental Lenders and (iii) the weighted average-life-to-maturity for each Series of Incremental Loans shall not be shorter than the remaining Revolving Credit Availability Period. 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 (b), each Incremental 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 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
Sources: Credit Agreement (Foster Wheeler Ag)
Incremental Loans. The Borrower may at any time or from time to time after request additional Commitments for the Fifth Restatement Effective Date, by written making of additional Loans under this Agreement following the Closing Date upon not less than ten (10) Business Days’ notice to the Administrative Agent (or such lesser period of time permitted by the Administrative Agent), so long as provided below(a) the requested additional Commitment, request one or more Lenders (including Persons who shall become Incremental Lenders together with all prior increases in the Commitments pursuant to this Section 2.01(c)2.06, is not more than $51,500,000, (b) 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 Insurance Policy limit has increased by at least such requested Commitment amount (less any agreed retention) and (ii) within 90 days prior to such additional Commitments, the Borrower shall have received proceeds from the issuance of additional Equity Interests in an amount equal to at least as much as the amount of Incremental Loans shall not exceed such additional Commitments, (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)(Bc) the First Lien Indebtedness Ratio (determined Borrower does not permit Liquidity to be less than the Interest Escrow Required Amount plus the Insurance Premium Required Amount calculated on a pro forma basis immediately after giving effect to each of (i) the establishment of such additional Commitment and (ii) the incurrence of such additional Loan (using Liquidity calculated as of the relevant determination date of such establishment and/or incurrence (as applicable) and immediately after giving effect thereto, and (X) the Interest Escrow Required Amount equal to the aggregate amount of the four (4) immediately following interest payments owed on the Loans and (Y) the then current Insurance Premium Required Amount), and (d) unless otherwise agreed by the Lenders, the Borrower shall use the proceeds of any such additional Loans solely for general corporate purposes. The Administrative Agent shall promptly notify the Lenders of the requested additional Commitment and, within seven (7) Business Days thereafter (or such other period agreed by the Administrative Agent and the Borrower), each Lender shall notify the Administrative Agent if and to what extent such Incremental Loans ▇▇▇▇▇▇ agrees to provide such additional Commitment. Any Lender not accepting in writing within such period shall be deemed to have declined to provide the requested additional Commitment. The Administrative Agent and the Borrower may allocate, in their discretion, any additional Commitments among committing existing Lenders. Any additional Commitment established 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 2.06 shall be subject to established at 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 requested amount that is not less than $10,000,000 (or such lesser amount that represents all of committed by existing Lenders and agreed by the remaining availability under the limits set forth in clause (iBorrower) 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 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 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 requested by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested and agreed upon 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; Lenders providing such incremental Commitment, provided that the effectiveness of such Incremental Loan Amendment shall be subject to the satisfaction of each of the conditions set forth in Section 7.01 are satisfied at such time. The Administrative Agent, the Borrower, and the existing Lenders shall execute and deliver such documents and agreements as the Administrative Agent deems appropriate to evidence the establishment of any additional Commitments and the making of any additional Loans, in each case, pursuant to this Section 2.06. Any incremental Commitment 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 this Section 2.06 shall have the same Incremental Loan Amendment shall be deemed to be a separate series (each a “Series”) of Incremental interest rate, maturity date and other terms as the Loans for all purposes of this Agreement.made on the Closing Date. 102563340 27
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (AST SpaceMobile, Inc.)
Incremental Loans. The Borrower may at (i) Term Loans. At any time or from time to time after commencing on the Fifth Restatement Effective Closing Date until the Term Loan Maturity Date, by written subject to the conditions set forth in clause (e) below, upon notice to the Administrative Agent as provided belowAgent, the Borrower may, from time to time, request one or more increases (but, together with increases in respect of Incremental Revolving Commitments, not more than five (5) increases in the aggregate) to the Term Loan Commitment or fundings of new Term Loans from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent and the Borrower (including Persons who each, an “Incremental Term Loan”), in an aggregate amount for all such Incremental Term Loans and any Incremental Revolving Commitments, not to exceed $70,000,000. Any Incremental Term Loan shall become Incremental Lenders be in the amount of at least $5,000,000 (or such lower amount that represents all remaining availability pursuant to this Section 2.01(c2.27(a)) to ny-2096649 v7 and integral multiples of $1,000,000 in excess thereof (x) provide additional Term Loans or increase the such lower 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 represents all remaining availability pursuant to this Section 2.01(c)(i)(B2.27(a)).
(ii) 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 Revolving Loans. At any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31Revolving Commitment Period, 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 conditions set forth in clause (ie) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loansbelow, 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, upon notice to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a)Administrative Agent, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement may, from time to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify time, request one or more increases (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 Loansbut, together with such other information reasonably requested by the Administrative Agent in connection therewith. Amounts prepaid increases in respect of Incremental Loans may Term Loans, not be reborrowed. Notwithstanding anything herein more than five (5) increases in the aggregate) to the contrary, no Lender shall be obligated to provide any Incremental Loans. Any Person Revolving Commitment from one 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 more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent) by such Person or Persons, the Borrower Issuing Lender, the Swingline Lender and the Administrative Agent; provided that Borrower (the effectiveness of “Incremental Revolving Commitment”), in an aggregate amount for all such Incremental Loan Amendment Revolving Commitments and any Incremental Term Loans, not to exceed $70,000,000. Any Incremental Revolving Commitment shall be subject in the amount of at least $5,000,000 (or such lower amount that represents all remaining availability pursuant 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 Amendment2.27(b)) and integral multiples of $1,000,000 in excess thereof (or such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made lower amount that represents all remaining availability 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 2.27(b)).
Appears in 1 contract
Sources: Credit Agreement (Accuray 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.
Appears in 1 contract
Incremental Loans. The Borrower may at any time or from time to time after the Fifth Restatement Effective Closing Date, 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 Loans and/or (y) establish one or more additional tranches of secured term loans hereunder (collectivelysuch term loans, the “Incremental Loans”); provided that (i) except as otherwise agreed by the aggregate amount Incremental Lenders providing the Incremental Loans, no Default or Event of Default shall exist or would exist after giving effect to any Incremental Loans; provided that, in the event that any tranche of Incremental Loans is used to finance a Permitted Acquisition or other Asset Acquisition and to the extent the Incremental Lenders participating in such tranche of Incremental Loans agree, the foregoing clause (i) shall not exceed (A) $400,000,000 (the be subject to customary “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) plus (B) additional amounts so long as both Certain Funds Provisions” and only be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition or other Asset Acquisition and the representations and warranties of the Borrower set forth in this Agreement that must be true and correct in all material respects (or in all respects to the extent 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 quartersrepresentation or warranty is qualified by materiality or Material Adverse Effect) shall not be greater than limited to “Specified Representations” and “Specified Acquisition Agreement Representations” (x) 3.50 in each case, as reasonably conformed 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 thereaftersuch Permitted Acquisition or other Asset Acquisition); (ii) each Person which the Borrower shall request all fees and expenses owing to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (and the Incremental Lenders in respect of such consent not to be unreasonably withheld)Incremental Loans shall have been paid; (iii) each tranche of all Incremental Loans borrowed on one Incremental Closing Date 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)10,000,000; (iv) except for after giving effect to all Incremental Loans requested under previously made hereunder and such proposed Incremental Loans, the aggregate principal amount of all such previous and proposed Incremental Loans shall not exceed (A) $275,000,000 less the aggregate principal amount of all Incremental Equivalent Debt incurred or issued in reliance on this clause (xA) above plus (B) an unlimited amount so long as, in the case of this clause (B), the Secured Leverage Ratio as of the applicable Incremental Closing Date on a pro forma basis after giving effect to the Incremental Loans does not exceed 3.5 to 1.0, with respect to which the Borrower shall provide to the Administrative Agent a certificate as to such Secured Leverage Ratio calculated in reasonable detail on such Incremental Closing Date (it being understood that unsecured Incremental Loans (or, as applicable pursuant to Section 7.03(m), unsecured Incremental Equivalent Debt) will be deemed to be secured for purposes of calculating the Secured Leverage Ratio) plus (C) the amount of any voluntary prepayment of any Loans (to the extent the relevant prepayment or reduction is not funded or effected with any Indebtedness) plus (D) in the case of Incremental Loans that serve to effectively extend the maturity of the Loans, an amount equal to the reductions in the Loans to be replaced with such Incremental Loans; (v) the Borrower shall deliver or cause to be delivered on the Incremental Closing Date any legal opinions, board resolutions or other customary certificates reasonably requested by Administrative Agent in connection with any Incremental Loans and consistent in form with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); (vi) the Incremental Loans may rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or pari passu or junior in right of security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent); (vii) any mandatory prepayment (other than scheduled amortization payments) of Incremental Loans that are Tranche A pari passu in right of payment and pari passu with respect to security shall be made on a pro rata basis with all then existing Loans (and all then-existing Other 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 (or Extended Loans requiring ratable prepayment), except that the scheduled final maturity Borrower and the Incremental Lenders in respect of such Incremental Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis); (viii) the material terms and provisions of Incremental Loans shall not be materially less favorable, taken as a whole, to the Loan Parties, than the terms and provisions of the Loans except as may be accelerated pursuant to Section 2.08(b)contemplated by clause (ix), (x) or (xi) below (provided that such terms and provisions that are not contemplated by such clauses (ix), (x) or (xi) may be different from the Loans to the extent reasonably satisfactory to the Administrative Agent; it being understood that terms and provisions which are applicable only after the Latest Maturity Date are reasonably satisfactory to the Administrative Agent); (ix) such Incremental Loans shall have a final maturity that is the same as or later than the Latest Maturity Date; (x) such Incremental Loans have a Weighted Average Life to Maturity as of the Incremental Closing Date that is the same as or longer than the Weighted Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity as 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)Closing Date; and (vxi) except as otherwise provided the all-in Section 6.09(ayield (whether in the form of interest rate margins, interest rate, original issue discount, upfront fees, or eurodollar or base rate floors (but not customary commitment, arrangement, underwriting, ticking, unused line, structuring or amendment fees), assuming, in the case of original issue discount and upfront fees, a four-year life to maturity) for such Incremental Loans will be determined by the Borrower shall within 30 days after and the Incremental Lenders and will not, in the case of Incremental Loans that are pari passu in right of payment and pari passu with respect to security with the Loans, be more than 50 basis points higher than the corresponding all-in yield (giving effect to interest rate margins, interest rate, original issue discount, upfront fees and eurodollar and base rate floors and any amendments to the Applicable Rate in respect of the Loans that became effective subsequent to the Closing Date but prior to the time of the addition of the relevant Incremental Loans (but not customary commitment, arrangement, underwriting, ticking, unused line, structuring or amendment fees) assuming, in the case of original issue discount and upfront fees, a four-year life to maturity) for the Loans made on the Closing Date and if the relevant Incremental Loans include any interest rate floor that is greater than that applicable to the existing Loans, and such floor is applicable to the existing Loans on the date a Person becomes a TV/Radio Subsidiary cause of determination, the Collateral and Guarantee Requirement excess amount shall be equated to be satisfied interest margin for determining the applicable interest rate, unless the all-in yield with respect to such TV/Radio Subsidiary. Such notice Loans shall specify be increased as of the Incremental Closing Date (wwhich increase in yield shall be effected by increasing the Applicable Rate applicable to such existing Loans) by an amount equal to the amount of difference between the all-in yield with respect to such Incremental Loans minus 50 basis points and the Person or Persons corresponding all-in yield on such Loans; provided that this clause (xi) shall only be effective until the date that is 18 months after the Closing Date. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount of the relevant Incremental Loans and be delivered at least three (3) Business Days prior to the proposed Incremental Closing Date, unless the Administrative Agent shall have determined in its sole discretion to accept such notice on such Incremental Closing Date. Incremental Loans may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide such any Incremental Loans) or by any other Eligible Assignee (any such Person providing an Incremental Loan, an “Incremental Lender”). Incremental Loans shall become under this Agreement pursuant to an amendment (an “Incremental Amendment”), executed by (x) the date on Administrative Agent, the consent of which such Incremental Loans shall is not to be madeunreasonably withheld or delayed, (y) the Incremental Loan Maturity Date and the Incremental Loan Principal Payment Dates (if any) for such Incremental Loans Lenders and (z) the Applicable Margin that will apply to such Incremental Loans Loan Parties, and (if applicable) the rate reaffirmations of the commitment fee, if any, payable Loan Documents executed by the Borrower in respect of the commitment to make such Incremental Loans, together with such other information reasonably requested by the Administrative Agent Loan Parties shall be delivered 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 (each case in form reasonable and substance reasonably satisfactory to the Administrative Agent) by . The Incremental Amendment may, without the consent of any other Lenders, 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 the Administrative Agent; provided Agent and the Borrower, to effect the provisions of this Section 2.15. The date that the effectiveness of such any Incremental Loan Amendment Loans are made shall be subject referred 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 “Incremental Closing Date” 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 AgreementLoans.
Appears in 1 contract
Sources: Credit Agreement (Nortek Inc)
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 DateBorrower may request that the Lenders (or other financial institutions agreed to by the Borrower 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 (d). In the event that one or more of the Lenders (or such other financial institutions) offer, by written notice in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Borrower agree as to the Administrative Agent as provided belowamount 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 Borrower in connection therewith, request 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 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 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 $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000. 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 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 Borrower 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 Borrower 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.
Appears in 1 contract
Sources: Credit Agreement (Ohio Logos Inc)
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 (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed (i) the aggregate greater of $250,000,000 and 100% of Consolidated EBITDA for the most recently completed four fiscal quarters for which financial statements have been delivered pursuant to Section 7.01(a) or (b) plus (ii) the maximum amount of Incremental Loans shall not Loan Commitments that could be incurred without causing the Secured Net Leverage Ratio to exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant 3.50 to Section 7.01(m) plus (B) additional amounts so long as both 1.00 at the time of and after giving effect to the incurrence thereof (assuming any such request and upon the effectiveness of Incremental Revolving Increase is fully funded); provided, that any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(BCommitments will first be counted against the basket contained in clause (1)(ii) above before being counted against 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 basket set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x1)(i) above that are Tranche A Term Loans, and (2) the total aggregate amount for each Incremental Loan Maturity Date of Commitment (and the Incremental Loans of any Series made thereunder) shall not be earlier less than the Tranche B Term Loan Maturity Date a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (except that the scheduled final maturity of or 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 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 (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition and agreed to by the Lenders providing such Incremental Term Loan, the foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 9.01(a), (f) or (g), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition);
(B) subject to Section 1.07 in connection with an Incremental Term Loan to finance a Limited Condition Acquisition, the satisfaction 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 (1) the Borrower is in compliance with the financial covenants set forth in Section 8.11 and (2) the Consolidated Net Leverage Ratio will be less than the maximum Consolidated Net 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) (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition, at the election of the Lenders providing such Incremental Term Loan, the foregoing condition (i) shall apply on the LCA Test Date and (ii) with respect to the funding date of any such Incremental Term Loan, may be limited to customary “specified” representations and warranties with respect to the Borrower and its Subsidiaries);
(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 Borrower may at (a) At any time or from time prior to time after the Fifth Restatement Effective Revolving Credit Termination Date, the Borrower may, by written notice to the Administrative Agent as provided below(which shall promptly deliver a copy to each of the Lenders), request one or more Lenders (including Persons who shall become Incremental Lenders pursuant the addition of up 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 two new tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that . The Incremental Loans shall:
(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 up to $10,000,000 50,000,000 and be made in up to two drawings, provided that, each borrowing shall be a minimum amount of $20,000,000;
(or such lesser amount that represents ii) unless otherwise provided in this Agreement, be Term Loans for all purposes hereunder (including for purposes of the remaining availability sharing of Collateral and guarantees under the limits set forth Guarantee and Collateral Agreement and for the purposes of any optional or mandatory prepayment);
(iii) have such pricing as may be agreed by the Borrower and the Lenders providing such Incremental Loans; provided that the applicable margin for the Incremental Loans shall not exceed the Applicable Margin then in clause (i) above); effect for the Initial Term Loans plus 0.25%;
(iv) except for Incremental Loans requested under clause (x) above that are Tranche A have the same or longer Weighted Average Life to Maturity as the Initial Term Loans; and
(v) have a final maturity date occurring not earlier than the date which, on the Incremental Loan Maturity Date of date the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that are made, is the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity date of the Incremental Initial Term Loans; and shall otherwise have the same terms as the Term Loans (and, unless otherwise noted in this Agreement, references to Term Loans shall be greater than deemed as the Average Life context requires to Maturity of include references to the Tranche B Term Loans Incremental Loans). The Borrower shall have the right to arrange for one or more banks or other financial institutions (except that any such bank or other financial institution being called an “Incremental Lender”) to extend commitments to provide 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 Borrower, provided that, each Incremental Lender shall be subject to the approval of the Borrower and the Administrative Agent in connection therewith(which approval shall not be unreasonably withheld). Amounts prepaid No Lender shall have any obligation to make an Incremental Loan unless and until it commits to do so. 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 Borrower, each Lender agreeing to provide such Commitment, each Incremental Lender, if any, and the Administrative Agent, and such amendments 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 other Loan Documents (executed by the relevant Loan Party and delivery to the Administrative Agent of an Incremental Loan Amendment (in form reasonable satisfactory to the Administrative Agentonly) by such Person or Persons, as the Borrower and the Administrative Agent; provided Agent shall reasonably deem appropriate to effect such purpose. For the avoidance of doubt, no amendment executed for the purpose of making Commitments in respect of Incremental Loans Commitments under this Agreement, shall require, as a condition to its effectiveness, the signature of any Lender that the is not obligated to make an Incremental Loan under such amendment. 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 paragraphs (a) and (b) of Section and Sections 5.02 and 5.03 5.2.
(it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be deemed to refer b) Notwithstanding anything to the effective date of such Incremental Loan Amendmentcontrary contained in this Agreement, (i) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made Borrower may not make more than two requests pursuant to Section 2.25 or pursuant to Section 2.26, provided that, it is understood and agreed that the same Incremental Loan Amendment shall be deemed Borrower may, at its sole option, make one request pursuant to be a separate series each of Section 2.25 and Section 2.26 and (each a “Series”ii) the aggregate amount of Incremental Loans for all purposes requested by the Borrower pursuant to this Section 2.25 plus the aggregate amount of increases of the Revolving Credit Commitments pursuant to this AgreementSection 2.26 shall not exceed $50,000,000.
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 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 (or, after the Amendment No. 3 Effective Date, the Borrower) 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 (or, after the Amendment No. 3 Effective Date, the Borrower) 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 (it being understood or, after the Amendment No. 3 Effective Date, other material indebtedness of the Borrower and the Subsidiaries) then outstanding and (z) the Administrative Agent shall have received a certificate to the foregoing dated such date and executed by a Financial Officer of Intermediate Holdings (or, after the Amendment No. 3 Effective Date, the Borrower) 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 1 contract
Sources: Credit Agreement (Advanced Disposal Services, Inc.)
Incremental Loans. The Borrower may at any time or 4159-▇▇▇▇-▇▇▇▇.▇
(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 4159-▇▇▇▇-▇▇▇▇.▇ 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 Lend▇▇’▇ ▇articipations 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 Borrower may at any time or may, from time to time time, on up to five (5) occasions after the Fifth Restatement November 2013 Incremental Term Loan Effective Date, 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 $800,000,000 from and after the November 2013 Incremental Term Loan Effective Date. 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, Total Outstandings shall not exceed the amount 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. 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 Properties, Inc.)
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 prior to the Fifth Restatement Effective Incremental Loan Commitment Termination Date, by written notice the Borrower may request that the Lenders offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental Loan") under this paragraph (d). In the Administrative Agent as provided below, request event that 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 Lenders offer, in their sole discretion, to enter into 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 commitments, and ending on December 31, 2014 such Lenders and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request agree as 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 commitments that shall be allocated to the respective Lenders making such offers 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 fees (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, be payable by the Borrower in respect of the commitment connection therewith, such Lenders shall become obligated 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 under this Agreement in an amount equal 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 amount of an their respective 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 agreeCommitments. The Incremental Loans to be made pursuant to any such agreement between the same Incremental Loan Amendment Borrower and one or more Lenders in response to any such request by the Borrower 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 $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and Incremental Loans shall not exceed $400,000,000. 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 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 Borrower in Dollars during the period from and including the date of such acceptance to but excluding the Incremental Loan Commitment Termination Date 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 Borrower 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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