Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained. (b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan. (c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans. (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless: (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans; (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied; (iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and (v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 6 contracts
Sources: Third Amended and Restated Credit Agreement (Equitrans Midstream Corp), Credit Agreement (EQM Midstream Partners, LP), Credit Agreement (EQT Midstream Partners, LP)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an aggregate amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the prior approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term 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 Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall become effective and no specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be provided under this Section 2.17 unless:
no earlier than the Term Loan Maturity Date, (iii) no Default or Event of Default shall exist at the time average life to maturity of the request Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term 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 Term Loans and (y) if such Other Term Loans are initially made at a discount or at the time Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term 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 “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the proposed Incremental Other Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the . The Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, promptly notify each Lender as to the extent applicable, by each effectiveness of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.each
Appears in 5 contracts
Sources: First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings (New) LLC)
Incremental Term Loans. Incremental Term Loan Facilities and Incremental Term Loans may be made hereunder pursuant to a supplement, an amendment or an amendment and restatement (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the an “Incremental Term LoansLoan Facility Amendment”) be made under of this Agreement and, as appropriate, the other Loan Documents, executed by Incremental Term Lenders pursuant to one or more the Borrower, each Incremental Term Loan Agreements. Such notice Lender (including any new Lender becoming a party to the Administrative Agent shall set forth the date on which this Agreement as an Incremental Term Loan Lender) with respect to such Incremental Term Loans are requested Loan Facility and the Administrative Agent. Notwithstanding anything to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date contrary in Section 11.01, the Incremental Term Loan Facility Amendment may, without the consent of any other Lenders, effect such notice (which time periods amendments to this Agreement and the other Loan Documents as may be modified necessary or waived at appropriate, in the discretion reasonable opinion of the Administrative Agent)) and include , to effectuate the applicable completed provisions of this Section 2.15. Each Incremental Term Loan Agreement for such Facility and the related Incremental Term Loans will be on such terms (including as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof amortization and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such requestmaturity) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise as are agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Loan Lender that has agreed to provide an in the applicable Incremental Term Loan pursuant Facility Amendment with respect to such request Incremental Term Loan Facility and, if the terms of such Incremental Term Loan Facility and the related Incremental Term Loans (other than final maturity) are not the same as any then existing Term Facility, such terms shall execute and deliver be reasonably acceptable to the Administrative Agent an and each Incremental Term Loan Agreement and Lender, but such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
will not in any event have a maturity date earlier than the latest Maturity Date (iincluding any extension option) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansthen existing Facility.
Appears in 3 contracts
Sources: Credit Agreement (Getty Realty Corp /Md/), Term Loan Credit Agreement (Getty Realty Corp /Md/), Credit Agreement (Getty Realty Corp /Md/)
Incremental Term Loans. (a) The Borrower shall have On the right from time terms and subject to time during the term conditions of this Agreement, and subject if there is to the terms and conditions set forth in this be an Incremental Term Loan Borrowing pursuant to Section 2.17, to request in writing incremental term loans (the “each Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Lender and New Lender that has an Incremental Term Loan Agreements. Such notice Commitment with respect to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested Loan Borrowing hereby severally agrees to be made (which shall not be less than three (3) Business Days nor more than 60 days after advance to the date of such notice (which time periods may be modified or waived at Borrower in a single advance on the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Effective Date specified for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything Loan Borrowing pursuant to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing Section 2.17 an Incremental Term Loan pursuant in Dollars; provided, however, that (A) the principal amount of the Incremental Term Loan made by such Incremental Term Lender or New Lender shall not exceed the Incremental Term Loan Commitment of such Incremental Term Lender or New Lender with respect to such requestIncremental Term Loan Borrowing and (B) is required the aggregate principal amount of all Incremental Term Loans made by all such Incremental Term Lenders and New Lenders shall not exceed the aggregate amount of all Incremental Term Loan Commitments with respect to be obtained.
(b) Any such Incremental Term Loan Borrowing. The Incremental Term Loans shall be made, at made on a pro rata basis by the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “applicable Incremental Term Lender”); provided that any Lenders and New Lenders in accordance with their respective Incremental Term Proportionate Shares of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Borrowing, with such Incremental Term Lender under this Agreement by execution and delivery Loan Borrowing to be comprised of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an by each such Incremental Term Lender and any or New Lender equal to such Incremental Term Lender’s or financial institution approached to provide New Lender’s Incremental Term Proportionate Share of such Incremental Term Loan Borrowing. The Borrower may not reborrow the principal amount of an Incremental Term Loan may elect after repayment or decline, in its sole discretion, to provide such Incremental Term Loanprepayment thereof.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (Arc Document Solutions, Inc.), Credit Agreement (Arc Document Solutions, Inc.), Credit Agreement (Arc Document Solutions, Inc.)
Incremental Term Loans. (a) The In the event that the Borrower shall have the right from time wishes to time during the term add one or more tranches of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by ), it shall notify the Administrative Agent in writing of the amount of such proposed Incremental Term Lenders pursuant to one or more Loans (such notice, an “Incremental Term Loan Agreements. Such notice to Notice”), and the Administrative Agent shall set forth the date on which notify each Lender of such proposed Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of and provide such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for additional information regarding such Incremental Term Loans as an attachment theretoany Lender may reasonably request. The Borrower may, at its election, (i) offer one or more of the Lenders or (ii) offer one or more additional banks, financial institutions or other entities (a “New Term Lender”) the opportunity to participate in all or a portion of the Incremental Term Loans; provided thatthat an Affiliate of the Borrower may not be a New Term Lender. Each Incremental Term Loan Notice shall specify which Lenders and/or New Term Lenders the Borrower desires to participate in such Incremental Term Loans. The Borrower or, notwithstanding if requested by the Borrower, the Administrative Agent, will notify such Lenders and/or New Term Lenders of such offer.
(b) Notwithstanding anything to the contrary contained herein in this Section 2.20, (i) in no event shall any transaction effected pursuant to this Section 2.20 cause the ratio of Consolidated Net Debt to Annualized Borrower EBITDA, calculated on a pro forma basis after giving effect to the borrowing of the proposed Incremental Term Loans and the use of proceeds thereof and of any concurrent incurrence of Revolving Credit Loans (but without giving any effect to any proceeds thereof received for purposes of determining Consolidated Net Debt in any event), to exceed 6.50 to 1.00, (ii) the Incremental Term Loans shall (A) rank pari passu in right of payment and of security with the Revolving Credit Loans and any then outstanding Term Loans and (B) not mature earlier than the Term Loan Maturity Date for the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date, (iii) the weighted average life to maturity of any Incremental Term Loan shall be greater than or equal to the then remaining weighted average life to maturity of the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date; provided that up to $250,000,000 in the aggregate of such Incremental Term Loans may be made without regard to clause (ii)(B) and this clause (iii); provided, however, that no Incremental Term Loans may mature earlier than the Revolving Credit Termination Date, (iv) no Lender shall have any obligation to participate in any Incremental Term Loans unless it agrees to do so in its sole discretion and (v) with respect to any Incremental Term Loans made on or prior to the six month anniversary of the 2018 Refinancing Amendment Effective Date, if the total yield in respect of any Incremental Term Loan Agreement(including any upfront fees, any interest rate floors, and any OID, with upfront fees and OID being equated to interest rates as reasonably determined by the Administrative Agent based on an assumed four-year life to maturity, but excluding any arrangement, underwriting or similar fee paid by the Borrower) (the “Incremental Term Margin”) exceeds the total yield for the Initial Term Loans made on the 2018 Refinancing Amendment Effective Date (including any upfront fees, any interest rate floors, and any OID, with upfront fees and OID being equated to interest rates as reasonably determined by the Administrative Agent based on an assumed four-year life to maturity, but excluding any arrangement, underwriting or similar fee paid by the Borrower) by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to equal the Incremental Term Margin minus 50 basis points.
(c) Commitments in respect of Incremental Term Loans shall become effective under this Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Term Loan, if any, each New Term Lender, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent to effect the provisions of this Section 2.20. The effectiveness of any Incremental Term Loan Amendment shall be subject to the satisfaction on the date thereof (the “Incremental Term Loan Closing Date”) of the following conditions precedent: (A) the delivery by the Borrower to the Administrative Agent of a certificate signed by an authorized officer of each Loan Party certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Loan Amendment; (B) pro forma compliance after giving effect to any Incremental Term Loan Amendment (and the making of any Incremental Term Loans) with Section 7.1 together with updated Projections of the type referred to in Section 6.2(c) giving effect to such Incremental Term Loan Amendment and the making of any Incremental Term Loans; (C) payment of fees and expenses in connection with such Incremental Term Loan Amendment prior to or simultaneously with the effectiveness of such Incremental Term Loan Amendment; and (D) if reasonably requested by the Administrative Agent, delivery of customary legal opinions from counsel substantially consistent, to the extent applicable, with those delivered on the Initial Amendment Date and reasonably satisfactory in form and substance to the Administrative Agent. Such additional term loans shall be subject to the terms of this Agreement and each of the other Loan Documents and, to the extent not specified or inconsistent with the terms and conditions set forth herein or therein, the terms and conditions applicable to each Incremental Term Loan as set forth in the Incremental Term Loan Amendment. From and after the Incremental Term Loan Closing Date for any Incremental Term Loans, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent be “Term Loans” for all purposes of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansDocuments.
(d) Notwithstanding This Section 2.20 shall supersede any provisions in Section 10.1 which would otherwise subject the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Amendment to the extent applicable, by each consent of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRequired Lenders.
Appears in 3 contracts
Sources: Credit Agreement (Sba Communications Corp), Revolving Refinancing Amendment (Sba Communications Corp), 2018 Refinancing Amendment (Sba Communications Corp)
Incremental Term Loans. (a) The Borrower shall have At any time, the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $350,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrowers may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Acquisition not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(C) the Administrative Agent and the Lenders shall have received from the Borrowers a Pro Forma Compliance Certificate demonstrating that the Credit Parties will be in compliance on a pro forma basis with the financial covenants set forth in Section 6.1 after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loans pursuant thereto and (3) any Consolidated Company Investment consummated in connection therewith; provided that if such Incremental Term Loans are incurred in connection with a Consolidated Company Investment or an irrevocable redemption or repayment of Indebtedness, compliance with the financial covenants set forth in Section 6.1 may be determined, at the option of the Parent, at the time of signing the request applicable acquisition agreement or at the time date of the making irrevocable notice of the proposed redemption or repayment, as applicable (in which case, such Incremental Term Loans;
Loans will be deemed outstanding for purposes of calculating the maximum amount of Indebtedness that can be incurred under any leverage-based test hereunder); provided further, that if the Parent has made such election, in connection with the calculation of any financial ratio (ii) all conditions precedent for a Borrowing other than the financial covenants set forth in Section 4.02 6.1) on or following such date and prior to the earlier of the date on which such Consolidated Company Investment is consummated or the definitive agreement for such Consolidated Company Investment is terminated or such redemption or repayment is made, as applicable, any such ratio shall be calculated on a Pro Forma Basis assuming such Consolidated Company Investment, redemption or repayment and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been satisfiedconsummated, except to the extent such calculation would result in a lower leverage ratio than would apply if such calculation was made without giving pro forma effect to such Consolidated Company Investment, redemption, repayment, other pro forma events and Indebtedness;
(iiiD) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrowers and shall be guaranteed with the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each other Extensions of the parties thereto Credit on a pari passu basis;
(or, F) in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Loan (the terms of which shall be set forth in the relevant Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Joinder Agreement):
Appears in 3 contracts
Sources: Credit Agreement (MEADWESTVACO Corp), Credit Agreement (Rock-Tenn CO), Credit Agreement (WestRock Co)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time prior to the earlier of (A) the Maturity Date and (B) the time the Term Loan is repaid in this Section 2.17full, to request in writing incremental term loans (the “Incremental Term Loans”) be made incur additional Indebtedness under this Credit Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice in the form of an increase to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan”)) by an aggregate amount of up to $5,250,000. The following terms and conditions shall apply to the Incremental Term Loan: (i) the Incremental Term Loan shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) the Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loans, (iii) any such Incremental Term Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds; provided that any such non-no existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an participate in or fund any Incremental Term Lender and Loan, (iv) any Lender or financial institution approached to provide an such the Incremental Term Loan may elect or declineshall be in a minimum principal amount of $2,500,000, in its sole discretion, to provide such Incremental Term Loan.
(cv) The Borrower and each Incremental Term Lender that has agreed to provide an the proceeds of any the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide will be used for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing purposes set forth in Section 4.02 have been satisfied;
3.11, (iiivi) the Borrower shall have provided execute a Term Note in favor of any new Lender or any existing Lender requesting a Term Note who provides a portion of the Incremental Term Loan Cash Collateral as required pursuant Loan, (vii) the conditions to Extensions of Credit in Section 6.10 hereof and 4.2 shall have been satisfied, (viii) the Administrative Agent shall have received copies an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Collateral Documents or any amendments thereto that Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent, (ix) the Administrative Agent shall deem reasonably necessary, signed, to have received from the extent applicable, by each of the parties thereto (or, in the case of any party as to which Borrower updated financial projections and an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party)officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , demonstrating that, after giving effect to any such Incremental Term Loan on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.9. The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation to join this Credit Agreement as it shall reasonably request, in each case in form and substance reasonably satisfactory to Lenders hereunder for the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor portion of such Incremental Term Lenders evidencing Loan not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Term LoansLoan therein.
Appears in 3 contracts
Sources: Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc)
Incremental Term Loans. (a) The Borrower shall have may, upon five (5) Business Days’ notice to the right Administrative Agent, request a commitment for an additional term loan from time to time during the term of this AgreementLenders or by adding one or more lenders, and determined by the Borrower in its sole discretion, subject to the terms consent of the Administrative Agent (such consent not to be unreasonably withheld), which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” and conditions set forth in this Section 2.17such commitment, to request in writing incremental term loans (the an “Incremental Term LoansLoan Commitment”); provided, however, that (i) be made under this Agreement by Incremental Term Lenders pursuant to one or more the Borrower may not request an Incremental Term Loan AgreementsCommitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Term Loan, (ii) each Incremental Term Loan Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof and (iii) the aggregate amount of all Incremental Term Loan Commitments shall not exceed $1,250,000,000. Such notice to the Administrative Agent shall set forth describe the amount and intended disbursement date on which of the Incremental Term Loan to be made pursuant to such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Loan Commitments. An Incremental Term Loan Commitment shall become effective upon (a) the execution by each applicable New Lender of a counterpart of this Agreement for and delivering such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything counterpart to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (Cb) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution a certificate of a counterpart thereof by such party)responsible officer of the Borrower, in each case in form and substance reasonably satisfactory to dated as of the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of date such Incremental Term Lenders evidencing Loan Commitments are proposed to take effect, certifying that as of such date each of the representations and warranties in Article 4 hereof are true and correct in all material respects, except for those representations and warranties that are qualified by materiality or Materially Adverse Effect, which shall be true and correct, and no Default then exists. Over the term of the Agreement the Borrower may request Incremental Term Loans.Loan Commitments no more than four (4)
Appears in 3 contracts
Sources: Term Loan Agreement (American Tower Corp /Ma/), Term Loan Agreement (American Tower Corp /Ma/), Term Loan Agreement (American Tower Corp /Ma/)
Incremental Term Loans. (a) The Borrower shall have the right from time Subject to time during the term of this Agreement, and subject to upon the terms and conditions set forth in this Section 2.172.14 and the other provisions set forth herein, each Lender with an Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees, at any time and from time to time on and after the date that such Incremental Term Loan Commitment is obtained pursuant to Section 2.14 and prior to the Incremental Commitment Termination Date for such Tranche of Incremental Term Loans, to request in writing incremental make a term loan or term loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more the Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Borrower for such Incremental Term Loans as an attachment thereto; provided thatTranche, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested which Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event shall be incurred on the applicable Incremental Term Loan Borrowing Date for such Tranche of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent shall be denominated in the Applicable Currency for a Borrowing set forth in Section 4.02 have been satisfiedsuch Tranche of Incremental Term Loans;
(iii) shall, if Dollar Loans, at the Borrower shall have provided option of the applicable Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that all Incremental Term Loans that are Dollar Loans comprising the Administrative Agent shall have received copies same Borrowing under such Tranche shall, unless otherwise specifically provided herein, be of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agentsame Type;
(iv) shall, if Canadian Loans, at the Administrative Agent shall have received customary legal opinionsoption of the applicable Incremental Term Loan Borrower, resolutions be incurred and closing certificates maintained as, and/or converted into, CDOR Rate Loans or Canadian Prime Rate Loans, provided that all Incremental Term Loans that are Canadian Loans comprising the same Borrowing under such Tranche shall, unless otherwise specifically provided herein, be of the same Type;
(v) shall, if an Alternate Currency Incremental Term Loan denominated in a Primary Alternate Currency, be incurred and other documentation as it shall reasonably request, maintained in each case one or more Borrowings of Euro Rate Loans denominated in form and substance reasonably satisfactory to the Administrative Agentsuch Primary Alternate Currency under such Tranche; and
(vvi) to the extent requested by shall not exceed for any such Incremental Term Loan Lender making an at the time of any incurrence thereof, that aggregate principal amount which equals the Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loan Commitment of such Incremental Term Lenders evidencing Loan Lender for such Tranche at such time (before giving effect to any reduction thereof at such time pursuant to Section 4.03(b)). Once repaid, Incremental Term LoansLoans incurred hereunder may not be reborrowed.
Appears in 3 contracts
Sources: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, the Borrower may, from time to request in writing incremental term loans time after the earlier to occur of (x) the “Incremental Term Loans”termination of all DDTL Commitments and (y) be made under this Agreement the DDTL Commitment Expiration Date, by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent (each, an “Incremental Facility Request”), request to add one or more additional tranches of incremental term loan facilities and/or increase the principal amount of the Loans of any existing Class (each, an “Incremental Term Loan Commitment” and the term loans thereunder, an “Incremental Term Loan”; each Incremental Term Loan Commitment is sometimes referred to herein individually as an “Incremental Facility” and collectively as the “Incremental Facilities”); provided, that the Aggregate Incremental Amount shall not exceed the Incremental Cap. Any Incremental Term Loan Commitment may be provided by, subject to Section 2.08(c)(v), (A) any existing Lender or any Affiliate of any Lender and/or (B) any other Person other than any natural person, any Loan Party or to any Affiliate of any Loan Party, or any Person that is a Disqualified Institution (any such Person that provides an Incremental Term Loan Commitment in accordance with this Section 2.08, including, without limitation, clause (c)(v) hereof, an “Incremental Term Loan Lender”). No Lender shall be obligated to provide any Incremental Facility, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender. Such Incremental Facility Request shall set forth (i) the amount of the Incremental Term Loan Commitment being requested, (ii) the date (an “Incremental Effective Date”) on which such Incremental Term Loans are Facility is requested to be made become effective (which which, unless otherwise agreed by Administrative Agent, shall not be less than three ten (310) Business Days nor more than 60 sixty (60) days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayednotice), but no consent of any Lender and (other than any Lender providing an Incremental Term Loan pursuant to such requestiii) is required to be obtainedthe Borrower’s proposed potential lenders thereof.
(b) Any such Each Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower Facility and each Incremental Term Lender that has agreed Loan Lender’s obligation to provide an fund the Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Loans thereunder shall become effective and no as of the Incremental Effective Date of such Incremental Facility so long as, after giving effect to such Incremental Facility, the Incremental Term Loans shall to be provided under this Section 2.17 unlessmade thereunder (assuming that the entire amount of such Incremental Facility is funded), and the application of the proceeds therefrom:
(i) subject to Section 1.12, no Default or Event of Default shall exist at immediately prior to or after giving effect to such Incremental Facility and the time funding of the request or at the time of the making of the proposed Incremental Term LoansLoans thereunder;
(ii) all conditions precedent for a Borrowing subject to Section 1.12, the representations and warranties of the Loan Parties set forth in Section 4.02 this Loan Agreement and each other Loan Document, shall be true and correct in all material respects on and as of the Incremental Effective Date (except to the extent that any such representation or warranty is expressly stated to have been satisfiedmade as of an earlier date, in which case, such representation or warranty shall be true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(iii) the Borrower subject to Section 1.12, no event, change or condition shall have provided Incremental Term Loan Cash Collateral as required pursuant occurred since December 31, 2019 that has had or could reasonably be expected to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative AgentMaterial Adverse Effect;
(iv) subject to Section 1.12, as of the last day of the most recently completed Test Period, the Total Net Leverage Ratio recomputed on a pro forma basis for such Incremental Term Loans shall not exceed 3.50:1.00;
(v) the proceeds of such Incremental Term Loan shall be used in accordance with Section 8.12;
(vi) on the Incremental Effective Date of such Incremental Facility, after giving effect thereto, Hayfin Lenders collectively hold not less than 50.1% of the aggregate outstanding principal amount of the Loans (including such Incremental Term Loan (which, for purposes of this clause (vi), shall be deemed fully funded on such Incremental Effective Date); and
(vii) the Administrative Agent shall have received received:
(A) the Incremental Facility Request that sets forth the requested amount and proposed terms of the requested Incremental Facility and the Incremental Effective Date;
(B) a certificate of a Responsible Officer certifying as to the foregoing clauses (i), (ii), (iii), (iv) and (v);
(C) a Solvency Certificate substantially in the form of Exhibit G duly executed by the chief financial officer of the Borrower confirming the Solvency of the Borrower and of each of the other Loan Parties and their Subsidiaries, taken as a whole, after giving effect to Borrowing of such Incremental Term Loans and the application of the proceeds thereof;
(D) legal opinions with respect to customary legal opinionsmatters, resolutions board resolutions, Notes (to the extent requested by the applicable Incremental Term Loan Lenders) and other customary closing certificates and other documentation as it shall reasonably requestrequested by the Administrative Agent, in each case in form consistent with those delivered on the Closing Date;
(E) guaranty and substance Lien reaffirmations as may be reasonably satisfactory to be requested by the Administrative Collateral Agent; and
(vF) from each proposed Incremental Term Loan Lender that is not (immediately prior to the extent requested by any effectiveness of the Incremental Facility) a Lender, an Administrative Questionnaire and such other documents, information and forms (including, without limitation, tax forms) as the Administrative Agent may request from such proposed Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
Appears in 2 contracts
Sources: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term Agreement Date, request one or more new commitments which may be of this Agreementthe same Class as any outstanding Term Loan (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Commitments”). Any request under this Section 2.2 shall specify the requested amount and proposed terms of the relevant Incremental Term Loans”) . Incremental Term Loans may be made under this Agreement by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment, nor will the Borrower have any obligation to approach any existing Lenders pursuant to one or more provide any Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatCommitment, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any the Agent shall have consented (such non-existing Lender consent not to be unreasonably conditioned, withheld or financial institution delayed) to such Additional Lender’s making such Incremental Term Loans to the extent such consent, if any, would be required under Section 13.2 for an assignment of Term Loans to such Additional Lender.
(b) The aggregate principal amount of Incremental Term Loans shall not exceed at the time incurred (i) the aggregate amount of Indebtedness that may be incurred under Section 9.2(b), plus (ii) (A) must in the case of Incremental Term Loans that are secured, the aggregate amount of Indebtedness that may be an Eligible Assignee, secured pursuant to clause (dd) of the definition of “Permitted Liens” and (B) must have an in the case of Incremental Term Loan Loans that are unsecured, the aggregate amount of at least $5,000,000 unless otherwise agreed Indebtedness that may be incurred under Section 9.2(p), plus (iii) an unlimited additional amount so long as, after giving effect to by any such incurrence on a pro forma basis (and after giving effect to any acquisition or other Investment consummated in connection therewith on a pro forma basis), (x) in the Administrative Agent case of Incremental Term Loans that are secured, the Senior Secured Indebtedness Leverage Ratio is no greater than 4.25:1.00 and (y) in the case of Incremental Term Loans that are unsecured, the Fixed Charge Coverage Ratio is no less than 2.00:1.00; provided, that the aggregate principal amount of Incremental Term Loans incurred and outstanding pursuant to clauses (i) and (ii)(B) above shall reduce the amount of Indebtedness permitted to be incurred under Section 9.2(b) and Section 9.2(p), respectively, and the Borrower and (C) must become an aggregate principal amount of Incremental Term Lender Loans incurred and outstanding under this Agreement clause (ii)(A) above shall reduce the amount of Indebtedness that is permitted to be secured by execution and delivery a Lien pursuant to clause (dd) of an Incremental Term Loan Agreementthe definition of “Permitted Liens”; provided, further, that no Lender the amount of secured Incremental Term Loans that the Borrower is permitted to incur pursuant to clause (i) above shall be required to become an reduced (not below zero) by the amount of any secured Incremental Term Lender and any Lender or financial institution approached Loans that the Borrower incurs pursuant to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanclause (iii)(x) above.
(c) The Borrower On any date on which any Incremental Term Commitments of any Class are effected (including through any Term Loan Increase) (each such date an “Incremental Tranche Closing Date”), subject to the satisfaction of the terms and conditions in this Section 2.2, (i) each Incremental Term Lender that has agreed of such Class shall make a Term Loan to provide the Borrower (an “Incremental Term Loan pursuant Loan”) in an amount equal to its Incremental Term Commitment of such request Class and (ii) each Incremental Term Lender of such Class shall execute and deliver become a Lender hereunder with respect to the Administrative Agent an Incremental Term Loan Agreement Commitment of such Class and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansLoans of such Class made pursuant thereto.
(d) The terms, provisions and documentation of any Incremental Term Loan or any Incremental Term Commitment shall be as agreed between the Borrower and the applicable Incremental Term Lenders providing such Incremental Term Loans or Incremental Term Commitments, and except as otherwise set forth herein, to the extent not substantially consistent with any Class of Term Loans existing on the Incremental Tranche Closing Date (as determined by the Borrower), shall be consistent with clauses (i) through (iii) below, as applicable. Notwithstanding the foregoing, no Incremental in the case of a Term Loan Agreement Increase, the terms, provisions and documentation of such Term Loan Increase shall become effective and no Incremental be identical (other than with respect to underwriting, commitment or upfront fees, original issue discount or similar fees) to the applicable Term Loans shall be provided under this Section 2.17 unless:being increased. In any event,
(i) no Default each Incremental Term Loan or Event Incremental Term Commitment:
(A) at the Borrower’s option, may rank pari passu or junior in right of Default payment with the other Term Loans or Commitments, as applicable, of such Class, may be pari passu or junior in right of security with the other Term Loans or Commitments, as applicable, of such Class (and, if junior in right of security, subject to an Acceptable Intercreditor Agreement) or may be unsecured;
(B) shall exist at not mature earlier than the Maturity Date with respect to the Restatement Term Loans (prior to giving effect to any extensions thereof);
(C) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Restatement Term Loans on the date of incurrence of such Incremental Term Loans (except by virtue of amortization or prepayment of the Restatement Term Loans prior to the time of such incurrence);
(D) shall have fees and, subject to clauses (d)(i)(B) and (d)(i)(C) above, amortization determined by the request or at Borrower and the time of the making of the proposed applicable Incremental Term Lenders; and
(E) may, in the case of an Incremental Term Loan or Incremental Term Commitment that is pari passu in right of payment and right of security with the Restatement Term Loans, provide for the ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any voluntary prepayments of Term Loans hereunder, as specified in the applicable Incremental Term Amendment;
(ii) all conditions precedent for a Borrowing the All-In-Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in Section 4.02 have been satisfied;
each applicable Incremental Term Amendment; provided, however, that with respect to any Incremental Term Loans (iiiother than any Excluded Incremental Term Loans) made on or prior to the Borrower date that is twelve (12) months after the applicable Closing Date (other than a Term Loan that is secured on a junior basis, unsecured or subordinated in right of payment or security), the All-In-Yield applicable to such Incremental Term Loans shall have not be greater than the applicable All-In-Yield payable pursuant to the terms of this Agreement with respect to the Restatement Term Loans plus 75 basis points per annum, unless the Interest Rate (together with, as provided in the proviso below, the Term SOFR or Base Rate floor) with respect to such Restatement Term Loans is increased so as to cause the then applicable All-In-Yield under this Agreement on such Restatement Term Loans to equal the All-In-Yield then applicable to the Incremental Term Loans minus 75 basis points; provided that any increase in All-In-Yield to the Restatement Term Loans due to the application of a Term SOFR floor or Base Rate floor on any Incremental Term Loan Cash Collateral shall be effected solely through an increase in (or implementation of, as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents applicable) any Term SOFR floor or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Base Rate floor applicable to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Restatement Term Lender making an Loans. “Excluded Incremental Term Loan, the Borrower shall have executed and delivered ” means any (w) Incremental Term Notes in favor Loans with a scheduled Maturity Date more than two (2) years after the Maturity Date of the Restatement Term Loans on the date of incurrence of such Incremental Term Lenders evidencing such Loans, (x) Incremental Term Loans.Loans incurred in connection with an acquisition or other Investment, and (y) any Incremental Term Loan in an aggregate principal amount that when incurred does not exceed 25.0% of Consolidated EBITDA; and
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (United Rentals North America Inc), Amendment and Restatement Agreement (United Rentals North America Inc)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17request Incremental Term Loan Commitments (each such increase, to request in writing incremental term loans (the an “Incremental Term LoansLoan Commitment”) be made under this Agreement by in an aggregate amount for all such Incremental Term Lenders pursuant Loan Commitments not to exceed the Incremental Facility Amount, from one or more Incremental Term Lenders, all of which must be Eligible Assignees, provided that each Lender shall have the right, but not the obligation, to provide its pro rata share of each series of Incremental Term Loan AgreementsCommitments or Incremental Term Loans. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments (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 amount remaining under the Incremental Facility Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less earlier than three (3) 5 Business Days nor more than 60 days after (or such later date as may be acceptable to the Administrative Agent) from the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)notice) and include (iii) in the applicable completed case of Incremental Term Loan Agreement for Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Loans as an attachment thereto; provided that(“Additional Term Loans”) or commitments to make term loans with terms different from the Loans (“Other Term Loans” and, notwithstanding anything to together with Additional Term Loans, the contrary contained herein or in “Incremental Term Loans”).
(b) Each Person that provides any Incremental Term Loan AgreementCommitments (other than a Person that is a Lender, such Incremental Term Loans an Affiliate of a Lender or a Related Fund of a Lender) shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of be approved by the Administrative Agent shall be required (such consent approval not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an ) prior to such Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Commitments becoming effective; provided that in no event will any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an required to provide any Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) Commitments. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of such Person and the Borrower shall deliver such customary opinions and certificates and other documentation as shall be reasonably requested by the Administrative Agent in connection with the establishment of such Incremental Term Loan Commitment. The terms and provisions of the Incremental Term Loans shall be identical to those of the Loans except with respect to the Other Term Loans, to the extent reasonably satisfactory to the Required Lenders, as otherwise set forth herein or in the Incremental Assumption Agreement. The Incremental Term Loans shall rank pari passu in right of payment and security with the Loans. Without the prior written consent of the Administrative Agent and the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date and (ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Loans. 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 Term Loan Commitments and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.19 unless (i) no Default or Event on the date of Default effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
be satisfied, (ii) all conditions precedent for a Borrowing set forth except as otherwise specified in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided applicable Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and Assumption Agreement, the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem legal opinions, board resolutions and other closing certificates reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iii) all fees and expenses owing in respect of telegraphicsuch Incremental Term Loan Commitment to the Administrative Agent and the Lenders shall have been paid in full and (iv) to the extent not consistent with this Agreement, telecopy, electronic communication or the other written confirmation from such party terms and documentation in respect of execution of a counterpart thereof by such party), in each case in form and substance the Other Term Loans shall otherwise be reasonably satisfactory to the Administrative Agent;Required Lenders.
(ivd) Incremental Term Loans may be made on a delayed draw basis pursuant to procedures and documentation agreed to by the Borrower, the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRequired Lenders.
Appears in 2 contracts
Sources: First Lien Term Loan Agreement, First Lien Term Loan Agreement
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during the term of this Agreementtime, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under in accordance with this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedSection 2.18.
(b) Any such Each tranche of Incremental Term Loans shall be madein an aggregate principal amount of not less than $25,000,000 (provided that such amount may be less if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, at the option aggregate amount of the Borrower, by all Incremental Term Loans shall not exceed an amount equal to (x) $200,000,000 minus (y) the aggregate amount of commitment increases made pursuant to Section 2.20 of the ABL Facility. In addition, (i) each tranche of the Incremental Term Loans shall rank pari passu in right of payment and have the equal benefit of Guarantees and Collateral with the Term Loans, (ii) such tranche of the Incremental Term Loans shall not have a final maturity date earlier than the Maturity Date and its Weighted Average Life to Maturity shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) at the time of and immediately after giving effect to the incurrence of such Incremental Term Loans, no Event of Default shall have occurred and be continuing, (iv) the representations and warranties of each Credit Party set forth in the Financing Documents shall be true and correct in all material respects on the date of incurrence of such Incremental Term Loans (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of the date of such Borrowing of Incremental Term Loans, (v) at the time of incurrence of any Incremental Term Loan and immediately after giving effect thereto, (A) the Borrower shall be in compliance with the financial covenants set forth in Article 6 hereof on a Pro Forma Basis and (B) the Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 2.50:1.00 on a Pro Forma Basis, (vi) the interest rate margins and, subject to clause (B) in the proviso, the amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the lenders of such Incremental Term Loans and (vii) except as set forth in clauses (ii) and (vi) above, to the extent the terms and conditions applicable to any tranche of Incremental Term Loans are inconsistent from those of the Term Loans, such differences shall be reasonably satisfactory to the Administrative Agent and set forth in the applicable Incremental Amendment; provided that, (A) in the event that the interest rate margins applicable to any Incremental Term Loans are more than 50 basis points greater than the then Applicable Rate for the Term Loans, the then Applicable Rate for the Term Loans shall be increased to the extent necessary so that the interest rate margins for the Incremental Term Loans are no more than 50 basis points greater than the then Applicable Rate for the Term Loans (provided that in determining the Applicable Rate applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans or lenders of the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four (4)-year life to maturity), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their affiliates) in connection with the Term Loans or to one or more existing Lenders and/or arrangers (yor their affiliates) one or more financial institutions that of the Incremental Term Loans shall be excluded and (z) if the LIBO Rate floor applicable to the Incremental Term Loans is higher than the LIBO Rate floor applicable to the Term Loans, the amount of such difference shall be deemed to be an increase to the Applicable Rate for the Incremental Term Loans for the purposes of determining compliance with this clause (A); and (B) the amortization schedule applicable to any tranche of Incremental Term Loans shall be determined by the Borrower and the lenders thereof, in each case so long as the Weighted Average Life to Maturity for any tranche of Incremental Term Loans shall not an be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans. Each notice from the Borrower pursuant to this Section 2.18(b) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) Incremental Term Loans may be made, by any existing Lender (and each existing Term Lender shall have the right, but not an obligation, to make a portion of any such Lender or financial institution referred to Incremental Term Loan, on terms permitted in this Section 2.17(b2.18 and otherwise on terms reasonably acceptable to the Administrative Agent) being called or by any other bank or other financial institution (any such other bank or other financial institution, an “Incremental Term Additional Lender”); provided that any the Administrative Agent shall have consented (not to be unreasonably withheld) to such non-existing Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.04(b) for an assignment of Loans as applicable, to such Lender or financial institution Additional Lender.
(Ad) must be an Eligible Assignee, (B) must have an Commitments in respect of Incremental Term Loan Loans shall become Term Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment,” and the date of at least $5,000,000 unless otherwise agreed effectiveness of such Incremental Amendment, an “Incremental Facility Closing Date”) to this Agreement and, as appropriate, the other Facility Documents, executed by the Borrower, each Lender agreeing to provide such Term Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to this Agreement and the other Facility Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18. The Borrower and (C) must become an may use the proceeds of the Incremental Term Lender under Loans for any purpose not prohibited by this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(ce) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request This Section 2.18 shall execute and deliver supersede any provisions in Section 2.15 or 10.02 to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loanscontrary.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Kindred Healthcare, Inc), Term Loan Credit Agreement (Kindred Healthcare, Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementright, and subject upon at least ten Business Days’ prior written notice to the terms and conditions set forth in this Section 2.17Administrative Agent (who shall promptly notify the Lenders), to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to institute one or more Incremental Term Loans (as defined below) at any time prior to the date that is six months prior to the Maturity Date subject to the conditions set forth below:
(i) the aggregate original principal amount of all Incremental Term Loans made pursuant to this Section 2.6 and the aggregate amount of all increases in the Revolving Committed Amount made pursuant to Section 2.7, shall not, in the aggregate, exceed the Incremental Cap at the time such Incremental Term Loans are established;
(ii) the conditions set forth in Section 5.2 shall have been satisfied;
(iii) such requested Incremental Term Loan Agreements. Such notice shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loan from either existing Lenders and/or one or more other institutions that qualify as an Eligible Assignee (excluding any Affiliate of a Lender) (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (B) any Incremental Term Loans shall be on terms and pursuant to documentation consistent with any existing Incremental Term Loans (if any) or otherwise reasonably satisfactory to the Administrative Agent and shall set forth share ratably in the Collateral and any mandatory prepayments of any existing Incremental Term Loans, except with respect to (i) any upfront or similar fees, amortization and interest rates (including floors) that, in each case, may be agreed to among the Borrower and the lenders providing such Incremental Term Loan and (ii) all terms and documentation with respect to any Incremental Term Loan which differ from those with respect to any existing Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have the ability to consult with the Requisite Lenders if it deems, in its sole discretion, appropriate. Any Incremental Term Loans that have terms and provisions that differ from those of any existing Incremental Term Loans (if any) outstanding on the date on which such Incremental Term Loans are requested to made shall be made (which designated as a separate tranche of Incremental Term Loans for all purposes of this Credit Agreement and shall not as the context makes appropriate be less than three (3) Business Days nor more than 60 days after deemed and treated herein as Incremental Term Loans except as the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed relevant Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding agreement otherwise provides. Notwithstanding anything herein to the contrary contained herein or in any Incremental Term Loan Agreementcontrary, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such all Incremental Term Loans shall be made, at the option Guaranty Obligations of the BorrowerGuarantors hereunder and will be secured on a pari passu basis, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (and the maturity date of any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan shall be no earlier than the Maturity Date. For the avoidance of at least $5,000,000 unless otherwise agreed to by doubt, the Administrative Agent rate of interest and the Borrower and amortization schedule (Cif applicable) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default determined by the Borrower and the applicable lenders and shall exist at be set forth in the time of the request or at the time of the making of the proposed applicable Incremental Term LoansLoan agreement;
(iiiv) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies all documents (including resolutions of the Collateral Documents or any amendments thereto that board of directors of the Administrative Agent shall deem Borrower and the Guarantors) it may reasonably necessary, signed, request relating to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication corporate or other written confirmation from necessary authority for such party Incremental Term Loan and the validity of execution such institution of a counterpart thereof by such party)Incremental Term Loans, in each case and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) the Administrative Agent scheduled maturity date of the Incremental Term Loan shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to not be earlier than the Administrative AgentMaturity Date;
(vi) [reserved]; and
(vvii) the Credit Parties shall be in compliance with the then applicable Consolidated Net Leverage Ratio and Consolidated Interest Coverage Ratio covenants specified in Section 8.18, in each case, calculated on a Pro Forma Basis after giving effect to such increase and any Loans advanced pursuant thereto. On the extent requested by any effective date of the applicable Incremental Term Loan agreement, each Incremental Term Loan Lender making party thereto severally agrees to make its portion of a term loan (each an “Incremental Term Loan, ”) in a single advance to the Borrower shall have executed and delivered in Dollars in the amount of its Incremental Term Notes Loan commitment as set forth in favor of such Incremental Term Lenders evidencing such Loan agreement. Amounts repaid on the Incremental Term Loans may not be reborrowed. The Incremental Term Loans may consist of Base Rate Loans or SOFR Loans, as further provided herein. The Applicable Percentage of each Incremental Term Loan shall be as set forth in the Incremental Term Loan agreement.
Appears in 2 contracts
Sources: Credit Agreement (Amn Healthcare Services Inc), Credit Agreement (Amn Healthcare Services Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, Administrative Agent elect to request the establishment of one or more additional Classes of Term Loans denominated in writing incremental term loans Dollars under this Agreement (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements). Such Each such notice to the Administrative Agent shall set forth specify the date (each, an “Incremental Effective Date”) on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at Borrower proposes that the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) before and after giving effect to the borrowing of such Incremental Term Loans on the Incremental Effective Date no Default shall have occurred and be continuing;
(ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B-1 Loans outstanding at the option time of such borrowing;
(iii) all other terms applicable to such Incremental Term Loans (other than provisions relating to original issue discount, upfront fees and interest rates, amortization (other than the Maturity Date and subject to clause (ii) above), optional prepayments or redemption terms, in each case, which shall be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Term Loans subject to the proviso contained in the definition of Applicable Margin), to the extent not consistent with or to the extent materially more onerous taken as a whole, than those terms applicable to the then outstanding Term B-1 Loans except to the extent such covenants and other terms apply solely to any period after the latest Maturity Date of any Class of Term Loans outstanding on the Incremental Effective Date immediately prior to the borrowing of such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(iv) the aggregate principal amount of Incremental Term Loans (other than Refinancing Term Loans) borrowed following the Closing Date, when aggregated with the principal amount of Qualifying Secured Debt issued pursuant to clause (w)(ii) of the Borrowerdefinition of “Permitted Indebtedness,” would not exceed the Maximum Incremental Amount;
(v) on a Pro Forma Basis, by (x) one the Borrower would be in compliance with each of the Financial Performance Covenants for the most recently ended Fiscal Quarter for which financial statements have been or more existing Lenders and/or are then required to have been delivered and (y) one the Consolidated Secured Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been or more financial institutions are then required to have been delivered would be less than or equal to 3.00 to 1.0; and
(vi) the Loan Parties and the Collateral Agent shall enter into such amendments to the Security Documents as may be reasonably requested by the Collateral Agent (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement) in order to ensure that is not an existing Lender the Incremental Term Loans are provided with the benefit of the applicable Security Documents and shall deliver such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Collateral Agent.
(b) The Borrower may approach any such Lender or financial institution referred any other Person that would be an Eligible Assignee to in this Section 2.17(b) being called an provide all or a portion of the Incremental Term Loans (a “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Refinancing Effective Date shall be designated a series (a “Series”) of Incremental Term Loans for all purposes of this Agreement; provided that, subject to the limitations set forth in clause (a) above, any Incremental Term Loans may, to the extent provided in the applicable Incremental Term Loan Amendment, be designated as an increase in any previously established Class of Term Loans.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under established pursuant to an amendment to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Agreement among the time of Borrower, the request or at Administrative Agent and the time of the making of the proposed Incremental Term Loans;
Lenders providing such Incremental Term Loans (iian “Incremental Term Loan Amendment”) all conditions precedent for a Borrowing which shall be consistent with the provisions set forth in Section 4.02 have been satisfied;
clause (iiia) above (but which shall not require the Borrower shall have consent of any other Lender other than those consents provided pursuant this Agreement). Each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Amendment shall be binding on the Lenders, the Loan Parties and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the other parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanshereto.
Appears in 2 contracts
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.), Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Incremental Term Loans. In addition to Borrowings of Revolving Loans, Tranche A Term Loans and Tranche B Term Loans specified in Section 2.01(a), (ab) The Borrower shall have the right and (c), respectively, at any time and from time to time during prior to the term Incremental Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Incremental Term Loans to the Borrower in U.S. Dollars. It is understood in each case that such offer may be made by any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (e), so long as the Administrative Agent shall have consented to such financial institution being a Lender hereunder (such consent shall not be unreasonably withheld). In the event that one or more of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be payable by the Borrower in connection therewith and the Applicable Rate and (in the case of Incremental Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and such Lenders shall execute and deliver an Incremental Term Loan Agreement and such Lenders shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement. The Incremental Term Loans to be made pursuant to any Incremental Term Loan Agreement in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any request specified above (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall be $75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term Loans of all Series, together with the aggregate unutilized Incremental Term Commitments of all Series, shall not exceed $500,000,000 at any time, (iii) the Incremental Term Loan Commitments of any Series shall terminate on the earlier of the Incremental Term Loan Availability Date and the date after the date of the respective Incremental Term Loan Agreement for such Series as agreed upon by the Borrower and the Incremental Term Loan Lenders and (iv) in no event shall the Incremental Term Loan Agreement for any Series of Incremental Term Loans provide for the final maturity of the Incremental Term Loans of such Series to be earlier than the Tranche B Term Loan Maturity Date, or for the weighted average life to maturity of the Incremental Term Loans of such Series to be less than the weighted average life to maturity of the Tranche B Term Loans as of the date of such Incremental Term Loan Agreement (such determination of average life to be made by the Administrative Agent). Following agreement by the Borrower and one or more of the Lenders as provided above, subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender of any Series agrees to the Administrative Agent shall set forth the date on which such make Incremental Term Loans are requested of such Series to be made (which shall not be less than three (3) Business Days nor more than 60 days after the Borrower from time to time during the period from and including the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed respective Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything Series to and including the contrary contained herein or in any earlier of the Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent Availability Date and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery date after the date of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement as agreed upon by the Borrower and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Lenders, in an aggregate principal amount up to but not exceeding the time amount of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies Commitment of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Series of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
Appears in 2 contracts
Sources: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, all of which must be either existing Lenders or Eligible Assignees. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term 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 Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the remaining average life to maturity of the Term Loans and (iii) if the All-in Yield applicable to such Other Term Loans (as determined by the Administrative Agent, which determination shall be conclusive absent manifest error) exceeds the sum of (x) the margin then in effect for Eurodollar Term Loans (which shall be the sum of the Applicable Margin then in effect for Eurodollar Term Loans increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to the clause (a) of the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (y) one-fourth of the amount of the OID paid in respect of the Term 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 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. Any Incremental Term Loans and Other Term Loans shall have the benefit of the same guarantees of the Guarantors under the Guarantee and Collateral Agreement as the Term Loans, and the Collateral shall secure any such Incremental Term Loans and Other Term Loans on a pari passu basis with the Credit Facilities. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.22 unless (i) the definitive documentation in respect of such Incremental Term Loan Commitment, to the extent not consistent with the Loan Documents, is reasonably satisfactory to the Administrative Agent, (ii) on the date of such effectiveness, (x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects, both before and after giving effect to such Incremental Term Loan Commitment, 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 and except for representations and warranties qualified by materiality, in which case such representations and warranties shall be accurate in all respects, (y) at the time of and immediately following the effectiveness of such Incremental Term Loan Commitment, no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
have occurred and be continuing and (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiz) the Borrower shall have provided received all approvals, consents, exemptions and authorizations from any Governmental Authority (including, without limitation, HPUC and DCCA) necessary or required in connection with the incurrence of such Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment and the contemplated borrowings in respect thereof and, in each case, the Administrative Agent shall have received copies a certificate to such effect dated such date and executed by a Financial Officer of the Collateral Documents Borrower, (iii) all fees, costs and expenses required to be paid by any Loan Party under any Loan Document or any amendments thereto that under the Administrative Agent shall deem reasonably necessary, signed, definitive documentation relating to such Incremental Term Loan Commitment on or prior to the extent applicable, by each effectiveness of the parties thereto (or, in the case of any party as to which an executed counterpart such Incremental Term Loan Commitment shall not have been receivedpaid prior to or substantially concurrently with the incurrence of such Incremental Term Loan Commitments, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the covenants set forth in Sections 6.11 and 6.12 would be satisfied on a pro forma basis (calculated assuming, without duplication, that such Incremental Term Loan Commitments have been fully utilized and giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions which occurred after the beginning of the relevant period and prior to or simultaneously with the incurrence of such Incremental Term Loan Commitments), (v) the Leverage Ratio, on a pro forma basis (calculated assuming, without duplication, that such Incremental Term Loan Commitments have been fully utilized and giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions which occurred after the beginning of the relevant period and prior to or simultaneously with the incurrence of such Incremental Term Loan Commitments), shall not be greater than (1) until financial statements for the first fiscal quarter ending after the Closing Date are delivered pursuant to Section 5.04(b), 3.00:1.00 and thereafter (2) 0.25:1.00 less than the then applicable covenant level set forth in Section 6.12, and (vi) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received customary (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.01.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the 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 Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall 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.
Appears in 2 contracts
Sources: Credit Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this AgreementParent may, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent Agent, request the establishment of Incremental Term Commitments, provided that the aggregate amount of Incremental Term Commitments established on any date shall not exceed the Incremental Amount on such date. Each such notice shall set forth (i) the amount of the requested Incremental Term Commitments (which, subject to the foregoing proviso, shall be at least US$50,000,000 unless otherwise agreed by the Administrative Agent) and (ii) the date on which such Incremental Term Loans Commitments are requested to be made effective (which shall be a Business Day not be less than three (3) 10 Business Days nor (or such shorter period as may be agreed to by the Administrative Agent) or more than 60 30 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentnotice)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything . Any Lender approached to the contrary contained herein or in provide any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower Commitment, and each Incremental Term Lender any Person that has agreed Parent proposes to provide become an Incremental Term Loan pursuant to Lender, if such request shall execute Person is not then a Lender, must be an Eligible Assignee and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall must be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed); provided that no Person may provide any Incremental Term Commitment to the extent that, on the date of telegraphiceffectiveness thereof or the making of any Incremental Term Loans thereunder, telecopysuch Person and its Affiliates, electronic communication or other written confirmation from such party taken in the aggregate, would hold more than 25% of execution the sum of a counterpart thereof by such party)the total outstanding Revolving Credit Exposure, total unused Revolving Commitments, aggregate outstanding principal amount of Incremental Term Loans and total unused Incremental Term Commitments, in each case in form and substance reasonably satisfactory case, determined on such date immediately after giving effect to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor effectiveness of such Incremental Term Lenders evidencing Commitments (and, if applicable, any Commitment Increase or Commitment Decrease made on such Incremental Term Loansdate).
Appears in 2 contracts
Sources: Credit Agreement (TripAdvisor, Inc.), Credit Agreement (TripAdvisor, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right may at any time and from time to time during after the term of this Agreement, and Closing Date (subject to the terms and conditions set forth in this Section 2.17of the Commitment Letter), by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to that (i) the contrary contained herein or in any Incremental Term Loan Agreement, proceeds of such Incremental Term Loans shall mature be applied to repay or redeem secured debt, secured lease obligations or preferred securities of any Project Subsidiary (x) set forth on Schedule 2.27 annexed hereto in an aggregate amount (including such amounts so applied pursuant to clause (i)(x) of the first proviso to Section 2.33 of the Existing DIP Agreement) not to exceed $1,100,000,000 during the term of this Agreement (the “Schedule Limit”) or (y) other than in accordance with the preceding clause (x), in an aggregate amount not to exceed $2,000,000,000, minus the aggregate proceeds applied to repayments or redemptions under the preceding clause (x), so long as the Collateral Requirements are satisfied, (ii) at the time that any such Incremental Term Loan is made (immediately after giving effect thereto), no Default or Event of Default shall have occurred and be continuing, (iii) the Borrower shall be in compliance with the covenants set forth in Section 6.17 determined on a pro forma basis as of the date of such Incremental Term Loan and the last day of the most recent fiscal period of the Borrower for which financial statements have been provided, in each case, as if such Incremental Term Loans had been outstanding on the Maturity Datelast day of such fiscal quarter of the Borrower for testing compliance therewith and after giving effect to any other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions after the beginning of the relevant fiscal quarter but prior to or simultaneous with the borrowing of such Incremental Term Loan, (iv) all fees and expenses owing in respect of such increase to the Agents and the Lenders shall have been paid, (v) if the Applicable Margin with respect to such Incremental Term Loans shall be higher than the Applicable Margin then in effect for the First Priority Term Loans plus 0.50%, such Applicable Margin with respect to the First Priority Term Loans shall be automatically adjusted to be equal to the relevant Applicable Margin relating to such Incremental Term Loans; provided that this clause (v) shall not be applicable with respect to any incurrence of Incremental Term Loans the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit during the term of this Agreement, (vi) S&P and ▇▇▇▇▇’▇ shall have reaffirmed (with no negative outlook) the ratings then in effect for the Facilities, after taking into account the incurrence of such Incremental Term Loans; provided that no such rating affirmation shall be required with respect to any incurrence of Incremental Term Loans (x) the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit or (y) the proceeds of which are used to repay the secured debt, secured lease obligations or preferred securities (I) set forth on Schedule 2.27 annexed hereto subject to the Schedule Limit or (II) other than in accordance with the preceding clause (I) unless such Incremental Term Loans would cause the aggregate amount of Incremental Term Loans incurred pursuant to this Section 2.27 and described in this clause (y)(II) (or incurred pursuant to Section 2.33 of the Existing DIP Agreement and described in clause (y)(II) of the third proviso of Section 2.33(a) of the Existing DIP Agreement) to exceed $500,000,000 or any integral multiple of $500,000,000 or would cause the aggregate amount of Incremental Term Loans incurred pursuant to this Section 2.27 (or incurred pursuant to Section 2.33 of the Existing DIP Agreement) to equal $2,000,000,000 and (vii) the other terms and conditions in respect of such Incremental Term Loans (other than pricing and amortization), to the extent not consistent with the Facilities, shall otherwise be reasonably satisfactory to the Administrative Agent. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not require less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in paragraph (c) below). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the First Priority Term Loans, (b) shall mature concurrently with the First Priority Term Loans and (c) for purposes of repayments shall be treated substantially the same as the First Priority Term Loans (including with respect to mandatory and voluntary prepayments and scheduled amortization). Each notice from the Borrower pursuant to this Section 2.27 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any mandatory prepayments thereof existing Lender (and shall each existing First Priority Term Lender will have the right, but not amortize. In connection with an obligation, to make a portion of any Incremental Term Loan or by any other bank or other financial institution (any such request, the consent of other bank or other financial institution being called a “New Lender”); provided that the Administrative Agent shall be required have consented (such consent not to be unreasonably withheld) to such Lender or New Lender making such Incremental Term Loans if such consent would be required under Section 9.6 for an assignment of First Priority Term Loans to such Lender or New Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Supplement”) substantially in the form of Exhibit I to this Agreement and, conditioned or delayed)as appropriate, but no the other Loan Documents, executed by the Borrower, the Guarantors, each Lender agreeing to provide such Commitment, if any, each New Lender, if any, and the Administrative Agent. An Incremental Commitment Supplement may, without the consent of any Lender (other than any Lender providing an Incremental Term Lenders, effect such amendments to this Agreement and the other Loan pursuant Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to such request) is required to be obtainedeffect the provision of this Section 2.27.
(b) Any such The effectiveness of any Incremental Term Loans permitted by this Section 2.27 shall be made, at subject to the option satisfaction of each of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any conditions set forth in Section 4.2 and such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by other conditions as the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender parties thereto shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanagree.
(c) The Borrower and each Notwithstanding anything to the contrary in this Section 2.27, (i) in no event shall the amount of the Incremental Term Loans permitted by this Section 2.27 exceed an amount equal to $2,000,000,000, less the aggregate principal amount of any Incremental Term Loans incurred by the Borrower prior to the Closing Date under the Existing DIP Agreement in effect during the pendency of the Cases and (ii) no Lender that has agreed shall have any obligation to provide make an Incremental Term Loan pursuant unless it agrees to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loansdo so in its sole discretion.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Incremental Term Loans. (a) The Borrower shall have may by written notice substantially in the right form set out in Exhibit H from time the Borrower to time during the Agent (each, an “Incremental Term Loan Notice”) elect to request an increase to the term loan commitments (each, an “Incremental Term Loan Commitment”); provided, the aggregate amount of all Incremental Term Loans shall not exceed the sum of (x) one hundred fifty million dollars ($150,000,000) and (y) the amount of any voluntary prepayments of Term A Loans and Term B Loans to the extent such voluntary prepayment reduces the aggregate outstanding principal amount of Term A Loans and Term B Loans and does not otherwise reduce any amounts that would otherwise be payable prior to maturity pursuant to any other provision of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans Agreement (the “Incremental Term LoansFacility Amount”) be made under this Agreement by Incremental Term Lenders pursuant to one or more ). The proceeds of any Incremental Term Loan Agreements. Such notice may be used by the Loan Parties for working capital and other general corporate purposes.
(b) Each Incremental Term Loan Notice shall specify (i) the amount of the Incremental Term Loan Commitment being requested (which shall be in a minimum amount of five million dollars ($5,000,000) or, if less, an amount equal to the Administrative Agent remaining Incremental Facility Amount), (ii) the date (each, an “Incremental Facility Effective Date”) on which the Borrower proposes that an Incremental Term Loan Commitment be effective, which shall set forth be a date (w) except for Incremental Term Loans provided by Petrichor Opportunities Fund I LP in an aggregate amount not to exceed $15,000,000, after the Term B Loans have been funded, (x) not later than 12 months after the Effective Date and (y) not less than five Business Days after the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything is delivered to the contrary contained herein or in any Incremental Term Loan AgreementAgent, such Incremental Term Loans shall mature on and (iii) the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent identity of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such each Lender or financial institution referred to in this Section 2.17(b) being called Eligible Assignee (each, an “Incremental Term Loan Lender”); provided that ) to whom the Borrower proposes any portion of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent Commitment be allocated and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery amounts of an Incremental Term Loan Agreementsuch allocations; provided, furthereach existing Lender, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an if any, from which the Borrower may request such Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan. Incremental Term Loans may not be provided by any Person other than a Lender or a Person that would constitute an Eligible Assignee.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Each Incremental Term Loan pursuant Commitment shall become effective as of the applicable Incremental Facility Effective Date; provided: (i) both before and immediately after giving effect to such request Incremental Term Loan, as of such Incremental Facility Effective Date, the representations and warranties contained herein and in the other Loan Documents shall execute be true and deliver correct in all material respects (except for those representations and warranties that are conditioned by materiality, which shall be true and correct in all respects) on and as of that Incremental Facility Effective Date to the Administrative Agent same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which shall have been true and correct in all respects) on and as of such earlier date; (ii) no Event of Default shall exist on such Incremental Facility Effective Date before or immediately after giving effect to such Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansLoan.
(d) Notwithstanding On or following any Incremental Facility Effective Date, subject to the foregoingsatisfaction of the foregoing terms and conditions, no (i) each Incremental Term Loan Lender shall become a party to this Agreement as an Incremental Term Loan Lender and Lender and shall make a loan(in accordance with any availability period set out in the applicable Incremental Term Loan Notice) to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto, and (iii) the applicable Incremental Term Loan Commitments shall become effective when the Agent countersigns the Incremental Term Loan Notice (which the Agent shall do promptly following receipt thereof).
(e) The Agent shall notify the Lenders, promptly upon receipt of the Borrower ’s notice of an Incremental Facility Effective Date, of the Incremental Term Loan Commitments and no the Incremental Term Loan Lenders.
(f) Except as set forth in clause (g) below, the terms of Incremental Term Loans shall be provided identical to the Term A Loans and Term B Loans (including the interest rate, margin, original issue discount, upfront fees, exit fees and call protection payable upon repayments or maturity, arrangement fees, structuring or other fees payable in connection therewith, regardless of whether such amounts are payable, directly or indirectly, to such Incremental Term Loan Lender, an Affiliate of such Incremental Term Loan Lender or otherwise) and pursuant to the same documentation applicable to the Term A Loans and Term B Loans. Warrants, equity and similar consideration (collectively, “Equity Consideration”) may be given in connection with Incremental Term Loans under this clause (f) solely to the extent (x) the number of shares of common stock represented by such Equity Consideration, together with any Equity Consideration issued under clause (g) below, do not exceed 0.50% of the fully diluted equity capitalization of the Parent in the aggregate and (y) they are on identical terms as the Warrants issued or to be issued pursuant to Section 2.17 unless:3.5(g) or more favorable terms to the issuer thereof (including, without limitation, pricing, amount, strike price and anti-dilution protections); provided that such warrants may have a different strike price so long as that strike price proportionately corresponds to a fully-diluted valuation of not less than $3.6 billion.
(ig) no Default or Event of Default shall exist at If the time of Borrower would be in compliance with the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing financial covenant set forth in Section 4.02 have been satisfied;
7.18(b) (iii) the Borrower shall have provided whether or not then in effect and determined on a pro forma basis and assuming that all Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not Commitments have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyfunded), in each case in form then the terms and substance reasonably satisfactory to documentation need not be consistent with the Administrative Agent;
then existing Term A Loans and Term B Loans; provided, (iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent requested by that any such terms and conditions are more restrictive on the Parent and its Subsidiaries in any way (including, any financial covenant, fulfillment covenant, or otherwise) such terms and conditions shall also be added for the benefit of the Term A Loans and Term B Loans, (ii) that amortization shall be identical to the Term A Loans and Term B Loans and mandatory prepayments of Incremental Term Loans shall be identical to, or more favorable to the Borrower than, the Term A Loans and Term B Loans, (iii) that the pricing, interest rate margins, discounts, premiums, rate floors, fees, and applicable to any Incremental Term Lender making an Loans shall be determined by the Borrower and the Incremental Term Loan, Loan Lenders; provided that if the Borrower shall have executed and delivered All-In Yield applicable to any Incremental Term Notes in favor Loan exceeds the corresponding All-In Yield applicable to the Term A Loans and Term B Loans then the Cash Interest Rate with respect to Term A Loans and Term B Loans shall automatically be increased by the amount of such excess, effective upon the making of such Incremental Term Lenders evidencing such Loans, (iv) neither Parent or any subsidiary of Parent shall be an obligor (other than the Borrower and Guarantors), (v) Incremental Term Loans shall not be secured by a lien on any assets other than the Collateral, (vi) the maturity date of Incremental Term Loans shall be no earlier than the Maturity Date and (vii) Equity Consideration may be given in connection with Incremental Term Loans under this clause (g) solely to the extent (x) the number of shares of common stock represented by such Equity Consideration, together with any Equity Consideration issued under clause (f) above, do not exceed 0.50% of the fully diluted equity capitalization of the Parent in the aggregate and (y) they are on identical terms as the Warrants issued or to be issued pursuant to Section 3.5(f) or more favorable terms to the issuer thereof (including, without limitation, pricing, amount, strike price and anti-dilution protections); provided that such warrants may have a different strike price so long as that strike price proportionately corresponds to a fully-diluted valuation of not less than $3.6 billion. Incremental Term Loans shall share ratably in any prepayment of the Term A Loans and Term B Loans.
(h) Each of the parties hereto hereby agrees that upon each applicable Incremental Facility Effective Date, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the applicable Incremental Term Loan Commitment and the Incremental Term Loans to be made pursuant thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (LumiraDx LTD), Loan and Security Agreement (LumiraDx LTD)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, to request in writing incremental Agent increase the then-effective amount of the Initial Term Loans or establish a new tranche of term loans hereunder (the any such increase or new tranche, “Incremental Term Loans”); provided that:
(i) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such principal amount of Incremental Term Loans are requested established pursuant to be made (which this Section 2.16, shall not be less than three exceed $100,000,000 (3) Business Days nor more than 60 days such amount, after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such deducting any Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestborrowed hereunder, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Incremental Basket”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.;
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement such documents and instruments and take such other documentation actions as may be required by Agent in connection with such increases and at the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.time of any such proposed increase;
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at have occurred and be continuing or would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the time Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the request or at date of such increase or, to the time extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such earlier date;
(iv) (A) the Incremental Term Loans provided under this Section 2.16 shall have a maturity date no earlier than the Termination Date and (B) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life to maturity of the making of the proposed Incremental Initial Term Loans;
(v) Borrower shall be in pro forma compliance with a Net Leverage Ratio of not more than 6.50 to 1.00 calculated as of the most recently ended Fiscal Quarter for which financial statements have been delivered and as if such Incremental Term Loans had been established (and fully funded) as of the first day of the relevant period for testing compliance and
(vi) All other terms and conditions with respect to the Incremental Term Loans, except with respect to All-in Yield (which shall be subject to clause (d) below), be no more favorable to the Borrower than those applicable to the Initial Term Loans (including in respect of guarantees and collateral) or added for the benefit of the Initial Term Loans; provided, the addition of Loan Parties organized in jurisdictions other than the United States, Canada, England and the Netherlands shall be subject to approval of the Agent.
(b) No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Loans. Only the consent of the Lenders agreeing to provide Incremental Term Loans (each such lender being an “Additional Lender”) shall be required pursuant to this Section 2.16.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Incremental Term Loans requested by Borrower shall be effective upon delivery to Agent of each of the following documents (the date of such effectiveness, the “Incremental Effective Date”):
(i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to Agent;
(ii) all conditions precedent for a Borrowing set forth notice to the Additional Lenders, in Section 4.02 have been satisfiedform and substance reasonably acceptable to Agent, signed by a Responsible Officer of Borrower;
(iii) the a certificate of Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessarysigned by a Responsible Officer, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory acceptable to Agent, certifying that each of the Administrative Agent;conditions in subsection (a) of this Section 2.16 has been satisfied: and
(iv) the Administrative any other certificates or documents that Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and.
(vd) Anything to the extent requested contrary contained herein notwithstanding, the All-In Yield that is to be applicable to the Incremental Term Loans may be lower than, equal to or higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date; provided that if the All-In Yield that is to be applicable to the Incremental Term Loans is higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date by more than 0.50% (the amount by which the All-In Yield is higher than 0.50%, the “Excess”), then the interest margin applicable to the Initial Term Loans immediately prior to the Incremental Effective Date shall be increased by the amount of the Excess, subject to the occurrence of and effective upon the Incremental Effective Date and without the necessity of any action by any party hereto.
(e) [Reserved].
(f) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Loans made pursuant to the Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans pursuant to this Section 2.16.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time Subject to time during the term of this Agreement, and subject to upon the terms and conditions set forth in this Section 2.17herein, each Lender with an Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees to request in writing incremental make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by to Company, which Incremental Term Lenders Loans (i) shall be incurred pursuant to one or more a single drawing on the respective Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Funding Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent (ii) shall be required denominated in Dollars, (such consent not to be unreasonably withheldiii) except as hereinafter provided, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madeshall, at the option of the BorrowerCompany, by be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, and (xiv) one or more existing Lenders and/or (y) one or more financial institutions that is shall not an existing Lender (exceed for any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan Lender at any time of at least $5,000,000 unless otherwise agreed to by any incurrence thereof, the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Commitment of such Incremental Term Lenders evidencing Loan Lender for such Tranche on the respective Incremental Term LoansLoan Funding Date. Once repaid, Incremental Term Loans may not be reborrowed. The Incremental Term Loan Commitments under a given Tranche (and the Incremental Term Loan Commitment of each Lender in respect of such Tranche) shall terminate in its entirety on the Incremental Term Loan Funding Date for such Tranche of Incremental Term Loans (after giving effect to the incurrence of the Incremental Term Loans of such Tranche on such date).
Appears in 2 contracts
Sources: Credit Agreement (Alliance HealthCare Services, Inc), Credit Agreement (Alliance HealthCare Services, Inc)
Incremental Term Loans. (a) The Borrower shall have terms, provisions and documentation of the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Loans and Incremental Term Loan Agreements. Such notice Commitments shall be as agreed between the Borrower and the applicable Additional Lenders providing such Incremental Term Loan Commitments, and except as otherwise set forth herein, to the extent not consistent with the Term Loans existing on the Incremental Facility Closing Date, shall be consistent with clauses (A) through (C) below, as applicable, and otherwise reasonably satisfactory to the Administrative Agent shall set forth (acting at the date on which direction of the Required Lenders) (except for covenants or other provisions (a) conformed (or added) in the Loan Documents pursuant to the related Incremental Amendment for the benefit of the Lenders or (b) applicable only to periods after the Latest Maturity Date as of the Incremental Amendment Date); provided that in the case of an Incremental Facility that increases any existing Class, the terms, provisions and documentation (other than the Incremental Amendment evidencing such increase) of such Incremental Facility shall be identical (other than with respect to upfront fees, original issue discount or similar fees) to the applicable Class of Term Loans are requested to be made being increased, in each case, as existing on the Incremental Facility Closing Date. In any event:
(which shall not be less than three (3A) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreementshall be secured only by the Collateral (or a portion thereof) on a pari passu or junior lien basis and shall only be guaranteed by the Guarantors (or a subset thereof); provided, that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor; provided, further, that for the avoidance of doubt, any Incremental Term Loan may also be unsecured;
(B) the Incremental Term Loans shall mature on not have a final scheduled maturity date earlier than the latest Maturity Date as of the Incremental Amendment Date, ;
(C) the Incremental Term Loans shall have a Weighted Average Life to Maturity not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestshorter than the Weighted Average Life to Maturity of the Initial Term Loans, the consent Delayed Draw Term Loans, the Sixteenth Amendment Incremental Term Loans, the Nineteenth Amendment Incremental Term Loans or any Extended Term Loans as to which the Initial Term Loans, the Sixteenth Amendment Incremental Term Loans, the Nineteenth Amendment Incremental Term Loans, or the Delayed Draw Term Loans were the Existing Term Loan Tranche; provided that for purposes of determining the Administrative Agent shall be required (Weighted Average Life to Maturity of such consent not Initial Term Loans, Delayed Draw Term Loans, Sixteenth Amendment Incremental Term Loans, Nineteenth Amendment Incremental Term Loans or any Extended Term Loans as to be unreasonably withheldwhich the Initial Term Loans, conditioned the Delayed Draw Term Loans or, the Sixteenth Amendment Incremental Term Loans DOCPROPERTY DOCXDOCID DMS=IManage Format=<<NUM>>_<<VER>> \* MERGEFORMAT 165714159_1 or delayed)Nineteenth Amendment Incremental Term Loans were the Existing Term Loan Tranche, but no consent the effects of any Lender (other than any Lender providing an amortization payments and prepayments made on such Initial Term Loans, Delayed Draw Term Loans, Sixteenth Amendment Incremental Term Loan pursuant Loans, Nineteenth Amendment Incremental Term Loans or Extended Term Loans prior to such request) is required to be obtained.
(b) Any the incurrence of such Incremental Term Loans shall be madedisregarded;
(D) the proceeds, at the option if any, of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to Commitment may be used by the Administrative Agent and the Borrower and its Subsidiaries for any purposes permitted by the applicable Incremental Amendment;
(CE) must become an Incremental Term Lender under this Agreement by execution and delivery of an the All-In Yield applicable to any Incremental Term Loan Agreementshall be determined by the Borrower and the applicable Additional Lenders; provided, furtherhowever, that no Lender shall be required if the All-In Yield applicable to become an Incremental Term Lender and any Lender or financial institution approached to provide an such Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an other than any Incremental Term Loan pursuant to such request shall execute and deliver to incurred in reliance on clause (D) of the Administrative Agent an Available Incremental Amount) exceeds by more than fifty basis points per annum the All-In Yield then in effect for any Initial Term Loans, Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Loans or Nineteenth Amendment Incremental Term Loans.
(d) Notwithstanding , as applicable, then the foregoingApplicable Loan Margin of the existing Initial Term Loans, no Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loans or Nineteenth Amendment Incremental Term Loans, as applicable, shall increase by an amount equal to such difference minus fifty basis points; provided, that if the applicable Incremental Loan Agreement includes an interest rate floor greater than the applicable interest rate floor under the existing Initial Term Loans, Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loans or Nineteenth Amendment Incremental Term Loans, such differential between the interest rate floors shall become effective and no be equated to the Applicable Loan Margin for purposes of determining whether an increase to Applicable Loan Margin under the existing Initial Term Loans, Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loans or Nineteenth Amendment Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryrequired, signed, but only to the extent applicablean increase in the interest rate floor in the existing Initial Term Loans, by each of the parties thereto (Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loans or Nineteenth Amendment Incremental Term Loans would cause an increase in the case of any party as to which an executed counterpart shall interest rate then in effect thereunder, and in such case, the interest rate floor (but not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Applicable Loan Margin) applicable to the Administrative Agent;
(iv) the Administrative Agent existing Initial Term Loans, Delayed Draw Term Loans or, Sixteenth Amendment Incremental Term Loans or Nineteenth Amendment Incremental Term Loans shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory be increased to the Administrative Agentextent of such differential between interest rate floors. The provisions of this Section 2.17(d)(v) are referred to herein as the “MFN Adjustment”; and
(vF) to the extent requested by any Incremental Term Lender making an Loan shall share ratably in any prepayments of the Initial Term Loans, any Delayed Draw Term Loans and, the Sixteenth Amendment Incremental Term Loan, Loans and the Nineteenth Amendment Incremental Term Loans pursuant to Section 2.09(b) unless the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term the applicable Additional Lenders evidencing such Incremental Term Loanselect lesser payments.
Appears in 2 contracts
Sources: Credit Agreement (Loar Holdings Inc.), Credit Agreement (Loar Holdings Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, all of which must be Eligible Assignees. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $1,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin above the Adjusted LIBO Rate on such Other Term Loans, (B) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four and (C) the amount of any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made (or available to be made)) exceeds by more than 50 basis points the sum of (X) the Applicable Margin then in effect for Eurodollar Term Loans, (Y) the amount of the original initial discount of such Eurodollar Term Loans (expressed as a percentage of the Eurodollar Term Loans) divided by four and (Z) the amount of any “LIBOR floor” applicable to such Eurodollar Term Loans (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 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.23 unless (i) no Default or Event on the date of Default such effectiveness, (A) the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall exist at the time of the request or at the time of be satisfied and (B) after giving effect to the making of any Incremental Loans and the proposed Incremental Term Loans;
use of the proceeds thereof, the First Lien Leverage Ratio shall not exceed 6.00 to 1.00, after giving pro forma effect to any event occurring after the last day of the most recently ended fiscal quarter for which financial statements have been delivered, as to which pro forma recalculation is appropriate (ii) all conditions precedent for a Borrowing including any Permitted Acquisition occurring after such period), as set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral 1.03, as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies if such transaction had occurred as of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each first day of the parties thereto period for which the First Lien Leverage Ratio is determined, (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivii) the Administrative Agent shall have received customary a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02, including, with respect to each Mortgage, either (A) a legal opinion to the effect that such Mortgage secures both the Term Loans and the Incremental Term Loans in accordance with Section 3.19(c) or (B) an amendment to such Mortgage and either a new title insurance policy or a modification or similar endorsement to the Collateral Agent’s title insurance policy with respect to such Mortgage insuring that such Mortgage complies with Section 3.19(c).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the 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 Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall 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 Sponsor shall have the right to participate in any Incremental Term Loan Commitments, provided that the Sponsor and its Affiliates may not own more than 20% of the aggregate principal amount of Loans and Commitments then outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Fairway Group Holdings Corp), Credit Agreement (Fairway Group Holdings Corp)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, to request in writing incremental Agent increase the then-effective amount of the Initial Term Loans or establish a new tranche of term loans hereunder (the any such increase or new tranche, “Incremental Term Loans”) to repay or retire the 2017 Senior Convertible Notes (provided, up to $7,000,000 may be made under this Agreement by Incremental Term Lenders pursuant used in a single borrowing for working capital purposes or to one or more Incremental Term Loan Agreements. Such notice to fund a Permitted Acquisition); provided that:
(i) the Administrative Agent shall set forth the date on which such principal amount of Incremental Term Loans are requested established pursuant to be made (which this Section 2.16, shall not be less than three exceed $100,000,000 (3) Business Days nor more than 60 days such amount, after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such deducting any Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestborrowed hereunder, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Incremental Basket”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.;
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement such documents and instruments and take such other documentation actions as may be required by Agent in connection with such increases and at the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.time of any such proposed increase;
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at have occurred and be continuing or would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the time Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the request or at date of such increase or, to the time extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such earlier date;
(iv) (A) the Incremental Term Loans provided under this Section 2.16 shall have a maturity date no earlier than the Termination Date and (B) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life to maturity of the making of the proposed Incremental Initial Term Loans;
(v) Borrower shall be in pro forma compliance with a Net Leverage Ratio of not more than 6.50 to 1.00 calculated as of the most recently ended Fiscal Quarter for which financial statements have been delivered and as if such Incremental Term Loans had been established (and fully funded) as of the first day of the relevant period for testing compliance and
(vi) All other terms and conditions with respect to the Incremental Term Loans, except with respect to All-in Yield (which shall be subject to clause (d) below), be no more favorable to the Borrower than those applicable to the Initial Term Loans (including in respect of guarantees and collateral) or added for the benefit of the Initial Term Loans; provided, the addition of Loan Parties organized in jurisdictions other than the United States, Canada, England and the Netherlands shall be subject to approval of the Agent.
(b) No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Loans. Only the consent of the Lenders agreeing to provide Incremental Term Loans (each such lender being an “Additional Lender”) shall be required pursuant to this Section 2.16.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Incremental Term Loans requested by Borrower shall be effective upon delivery to Agent of each of the following documents (the date of such effectiveness, the “Incremental Effective Date”):
(i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to Agent;
(ii) all conditions precedent for a Borrowing set forth notice to the Additional Lenders, in Section 4.02 have been satisfiedform and substance reasonably acceptable to Agent, signed by a Responsible Officer of Borrower;
(iii) the a certificate of Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessarysigned by a Responsible Officer, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory acceptable to Agent, certifying that each of the Administrative Agent;conditions in subsection (a) of this Section 2.16 has been satisfied: and
(iv) the Administrative any other certificates or documents that Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and.
(vd) Anything to the extent requested contrary contained herein notwithstanding, the All-In Yield that is to be applicable to the Incremental Term Loans may be lower than, equal to or higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date; provided that if the All-In Yield that is to be applicable to the Incremental Term Loans is higher than the All-In Yield applicable to the Initial Term Loans hereunder immediately prior to the Incremental Effective Date by more than 0.50% (the amount by which the All-In Yield is higher than 0.50%, the “Excess”), then the interest margin applicable to the Initial Term Loans immediately prior to the Incremental Effective Date shall be increased by the amount of the Excess, subject to the occurrence of and effective upon the Incremental Effective Date and without the necessity of any action by any party hereto.
(e) [Reserved].
(f) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Loans made pursuant to the Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans pursuant to this Section 2.16.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Incremental Term Loans. (a) The At any time after the Effective Date, the Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); provided that (1) the total aggregate principal amount for all such Incremental Commitments shall set forth not (as of any date of incurrence thereof) exceed the Maximum Incremental Facilities Amount at such time and (2) the total aggregate principal amount for each Incremental Commitment (and the Incremental Term Loans made thereunder) shall not be less than $25,000,000 (or such lesser amount as may be (x) approved by the Administrative Agent or (y) remaining pursuant to foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Commitment shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as the Administrative Agent may agree to) after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that. The Borrower may invite any Lender, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent Affiliate of any Lender (and/or any Approved Fund, and/or any other than any Lender providing an Incremental Term Loan pursuant Person reasonably satisfactory to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; providedAgent, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any Incremental Commitment shall become effective as of such Increased Amount Date; provided that:
(i) all the conditions in Section 4.2 shall have been met; provided that in connection with an acquisition or investment permitted hereunder or an irrevocable redemption of other Indebtedness permitted hereunder, if agreed to by the respective Incremental Lenders, the Borrower shall only be required to (i) comply with Section 4.2(a), (ii) make customary “Sungard” representations and warranties and (iii) comply with a requirement that no Event of Default under Sections 7.1(a), (b), (i) or (j) shall have occurred and be continuing on the applicable Increased Amount Date or after giving effect to the making of the Incremental Term LoanLoans on such Increased Amount Date.
(cii) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no proceeds of any Incremental Term Loans shall be provided used for the working capital and general corporate purposes (including acquisitions, investments and Restricted Payments permitted under this Section 2.17 unless:
(iAgreement) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfiedBorrower and its Restricted Subsidiaries;
(iii) each Incremental Commitment (and the Borrower shall have provided Incremental Term Loans made thereunder) shall constitute Obligations and Parity Secured Obligations for all purposes under the Loan Cash Collateral as required pursuant to Section 6.10 hereof Documents and shall be secured and guaranteed with the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto other Term Loans hereunder on a pari passu basis;
(or, iv) in the case of any party as each series of Incremental Term Loans (the terms of which shall be set forth in an amendment (an “Incremental Commitment Supplement”) to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case this Agreement in form and substance reasonably satisfactory to the Administrative AgentAgent and the Borrower):
(A) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the initial Term Loans made on the Effective Date or a final maturity date earlier than that of such initial Term Loans;
(ivB) the Applicable Margin, pricing grid, if applicable, and fees for such Incremental Term Loan shall be determined by the applicable Incremental Lenders and the Borrower and set forth in the applicable Incremental Commitment Supplement;
(C) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Term B Loans and, in the case of mandatory prepayment offers required pursuant to Section 2.14, such prepayments offers shall be on made pro rata on the basis of the original aggregate funded amount thereof among the Term B Loans and the Incremental Term Loans (except, in each case, to the extent that the respective Incremental Lenders elect a lesser prepayment);
(D) each series of Incremental Term Loan Commitments shall be effected pursuant to an Incremental Commitment Supplement executed and delivered by the Borrower, the Administrative Agent shall have received customary legal opinionsand the applicable Incremental Lenders (which Incremental Commitment Supplement may, resolutions without the consent of any other Lenders, effect such amendments to this Agreement and closing certificates and the other documentation Loan Documents as it shall reasonably requestmay be necessary or appropriate, in each case in form and substance reasonably satisfactory to the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.25); and
(vE) the Borrower shall deliver or cause to be delivered any customary legal opinions or other customary documents (including, without limitation, a resolution duly adopted by the extent board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Term Loan and/or Incremental Term Loan Commitment) reasonably requested by the Administrative Agent in connection with any such transaction.
(i) Unless otherwise specifically provided herein, all references in the Loan Documents to Term Loans shall be deemed, unless the context otherwise requires, to include references to Incremental Term Loans that are Term Loans made pursuant to this Agreement; provided that such Incremental Term Loan either shall be designated as a separate tranche of Term Loans for all purposes of this Agreement or may be added to a then existing tranche of Term Loans (and thereafter, for all purposes of the Loan Documents, be treated as part of such existing tranche of Term Loans).
(ii) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed or provided for in this Agreement, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(iii) The Incremental Term Loans may be drawn on a delayed draw basis if agreed by the Incremental Lenders providing such Incremental Term Loans.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender making with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(d) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower and the other applicable Loan Parties as may be necessary in order to effectuate the terms of this Section 2.25 (including, without limitation, as applicable, (1) to permit the Incremental Term Loans to share ratably in the benefits of this Agreement and the other Loan Documents and (2) to include the Incremental Term Loan Commitments or outstanding Incremental Term Loans in any determination of Required Lenders). Without limiting the foregoing, in connection with any Incremental Term Loan, the Borrower respective Loan Parties shall have executed (at their expense) amend (and delivered Incremental Term Notes in favor of the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest Stated Maturity so that such Incremental Term Lenders evidencing maturity date is extended to the then latest Stated Maturity (or such Incremental Term Loanslater date as may be advised by local counsel to the Collateral Agent).
Appears in 2 contracts
Sources: Credit Agreement (Constellation Energy Generation LLC), Credit Agreement (Calpine Corp)
Incremental Term Loans. (a) The Borrower shall have the right may, from time to time during after the term of this AgreementRestatement Effective Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”); provided that (i) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to both at the Administrative Agent shall set forth time of any such request and at the date on which time that any such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist have occurred and be continuing or result therefrom, (ii) the aggregate amount of such Incremental Term Loans, taken together with all Incremental Term Loans previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $500,000,000, (iii) the final stated maturity date of such tranche of Incremental Term Loans shall not be earlier than the Maturity Date in effect at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor incurrence of such Incremental Term Loans, (iv) such tranche of Incremental Term Loans shall rank pari passu in right of payment with the Revolving Loans, (v) such Incremental Term Loans shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (vi) the terms, conditions and documentation governing such Incremental Term Loans (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders evidencing or Additional TL Lenders (as defined below) providing such Incremental Term Loans, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans).
(b) Each notice from the Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Term Loans. In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to Section 2.01(a) and (ab) The Borrower shall have the right above, respectively, from time to time during time, GEO may request that any one or more of the term Lenders or, at the option of this AgreementGEO, and subject other financial institutions or funds selected by GEO offer to the terms and conditions set forth in this Section 2.17, enter into commitments to request in writing incremental make additional term loans (the “Incremental Term Loans”) to GEO, in Dollars, in an aggregate principal amount not to exceed the Incremental Amount. 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 GEO agree as to the amount of such commitments that shall be made allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by GEO in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Term Loans under this Agreement by Incremental Term Lenders pursuant in an amount equal to one or more the amount of their respective Incremental Term Loan AgreementsCommitments (and such financial institutions shall become “Incremental Lenders” hereunder). Such notice The Incremental Term Loans to be made pursuant to any such agreement between GEO and any such Incremental Lenders in response to any such request by GEO shall be deemed to be a separate “Series” of Incremental Term Loans hereunder for all purposes of this Agreement. Anything herein to the Administrative Agent shall set forth contrary notwithstanding:
(1) the date on which First Lien Leverage Ratio after giving effect to the incurrence of any such Incremental Term Loans are requested to be made (which and the use of proceeds therefrom) on a pro forma basis (but without netting cash proceeds thereof) shall not exceed 2.25:1.00;
(2) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall be less than three (A) $20,000,000 or a larger multiple of $1,000,000 or (B) any other amount consented to by the Administrative Agent;
(3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madesubject to, at and entitled to the option of benefits of, the Borrowercollateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Loan hereunder;
(4) except as otherwise expressly provided herein, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “the Incremental Term Lender”Loans of any Series shall have the interest rate and upfront, participation and other fees as shall be agreed upon by GEO and the applicable Incremental Lenders; provided that if the All-In-Yield relating to such Incremental Term Loans that are secured on a pari passu basis and having equal payment priority with the Term Loans exceeds the All-In-Yield relating to the Term Loans in effect immediately prior to the effectiveness of such Incremental Term Loan Amendment by more than 0.50%, the All-In-Yield relating to the Term Loans shall be adjusted to be equal to the All-In-Yield relating to the Incremental Term Loans minus 0.50%;
(5) the Incremental Term Loans of any Series shall (i) have the commitment reduction schedule (if any), amortization and maturity date as shall be agreed upon by GEO and the applicable Incremental Lenders; provided that (A) the maturity for such Series of Incremental Term Loans shall not be earlier than the latest Maturity Date and (B) the weighted average-life-to-maturity for such Series of Incremental Term Loans shall not be shorter than the weighted average-life-to-maturity for the Term Loans and the Revolving Credit Commitments, and (ii) share in any mandatory prepayment (other than scheduled amortization payments) of Loans hereunder on a pro rata basis as provided in Section 2.10(b); provided that GEO and the applicable Incremental Lenders shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such non-existing Lender or financial institution prepayments on a less than pro rata basis (Abut not on a greater than pro rata basis); and
(6) must be an Eligible Assignee, (B) must have an the Incremental Term Loan Loans of at least $5,000,000 unless otherwise any Series shall be subject to such conditions to effectiveness and initial credit extension as shall be agreed to upon by the applicable Incremental Lenders, GEO and the Administrative Agent (which agreement by the Administrative Agent and the Borrower and (Cshall not be unreasonably withheld); provided that GEO shall be in compliance with Section 5.11(c) must become an Incremental Term Lender under this Agreement by execution and delivery as of an Incremental Term Loan Agreementsuch date; provided, further, that no Lender GEO and the applicable Incremental Lenders shall be required permitted to become an modify or waive (without the need for consent or approval from any other Lender or the Administrative Agent) any or all of the conditions to the initial Borrowing of the applicable Incremental Term Lender and Loans (but not, for the avoidance of doubt, any Lender or financial institution approached requirements hereunder with respect to provide an any Incremental Term Loan may elect or declineCommitment itself, including, without limitation, clauses (1) through (5) above) set forth in its sole discretionthis Agreement, including Section 4.02 (other than with respect to provide such Incremental Term Loan.
(cx) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
absence of any Event of Default under any of Sections 7.01(a), (d) Notwithstanding the foregoingb), no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(h), (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
j), (iiiy) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and accuracy of customary “specified representations” or (z) the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyimmediately preceding proviso), in each case in form and substance reasonably satisfactory to any transaction where the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor net cash proceeds of such Incremental Term Loan will be used to fund a Permitted Acquisition or other acquisition permitted under this Agreement. Following the acceptance by GEO of the offers made by any one or more Lenders evidencing to make any Series of Incremental Term Loans pursuant to the foregoing provisions of this Section 2.01(e), each such Incremental Lender in respect of such Series of Incremental Term Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Term LoansLoans to GEO on a Business Day 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 (such agreement, an “Incremental Term Loan Amendment”) in an aggregate principal amount up to but not exceeding the amount of the Incremental Term Loan Commitment of such Incremental Lender in respect of such Series as in effect from time to time. Amounts prepaid or repaid in respect of Incremental Term Loans may not be reborrowed. Notwithstanding anything to the contrary in Section 9.02, the Lenders hereby irrevocably agree that the Administrative Agent, the Lenders providing such Incremental Term Loan Commitments and the applicable Loan Parties may effect amendments to this Agreement and the other Loan Documents of a technical or administrative nature (without any further consent of any other party to such Loan Document) as may be necessary, appropriate or desirable, in the reasonable opinion of the Administrative Agent and GEO, in order to establish and implement any Incremental Term Loans or Commitments in respect thereof pursuant to, and in accordance with, this Section 2.01(e).
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) hereunder, in an aggregate amount for all such New Term Loan Commitments not in excess of the greater of (a) $50.0 million and (b) an unlimited amount, so long as in the case of this clause (b), after giving effect to such New Term Loans, the Consolidated Net Total Secured Leverage Ratio on a pro forma basis (but without netting the cash proceeds of such New Term Loans for purposes of determining the Consolidated Net Total Secured Leverage Ratio) shall set forth be equal to or less than 3.00 to 1.00, plus, in each case, in the case of New Term Loans that serve to effectively extend the maturity of any then outstanding Term Loans, an amount equal to the portion of such then outstanding Term Loans to be replaced with such New Term Loans. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that the New Term Loan Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of Agent unless the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)otherwise agrees; provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of any New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental New Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unless:
that (i1) no Default or Event of Default shall exist at the time of the request or at the time of would exist after giving effect thereto and Holdings shall be in pro forma compliance with Section 7.1 on such Increased Amount Date after giving effect to such New Term Loan Commitments and to the making of any Tranche of New Term Loans pursuant thereto and after giving effect to any Permitted Acquisition, Investment permitted by Section 7.7 or redemption, repurchase, defeasance, repayment or refinancing of Indebtedness consummated in accordance therewith (but without netting the proposed Incremental cash proceeds of such New Term Loans;
Loans for purposes of determining the Consolidated Net Total Leverage Ratio) (ii) all provided that to the extent the proceeds of such New Term Loans will be used to consummate a Permitted Acquisition or Investment permitted by Section 7.7, the conditions precedent for a Borrowing set forth in clause (1) above shall only be required to be satisfied on the date on which definitive agreements with respect to such Permitted Acquisition or Investment permitted by Section 4.02 have been satisfied;
7.7 are entered into, assuming that such New Term Loan Commitments are established, and the Loans thereunder made, on such date, the proceeds thereof are applied on such date and such Permitted Acquisition or Investment permitted by Section 7.7 closes on such date); (iii2) the Borrower shall have provided Incremental interest rate margins applicable to any New Term Loan Cash Collateral as required pursuant to Section 6.10 hereof will be determined by the Borrowers and the Administrative Lenders providing such New Term Loan and such interest rate margins (which shall be deemed to include original issue discount (based on a four (4) year average life to maturity or, if less, the remaining life to maturity) and upfront fees, but exclude arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers or the Documentation Agent shall have received copies of (or their respective affiliates) in their capacities as such in connection with the Collateral Documents existing Initial Term Facility or to one or more arrangers (or its affiliates) in their capacities as such applicable to the New Term Loans or New Term Loan Commitments or any amendments thereto other or other fees payable in connection with the existing Initial Term Facility or the New Term Loans or New Term Loan Commitments that are not paid generally to Lenders providing the Administrative Agent shall deem reasonably necessary, signed, existing Initial Term Loan Facility or such New Term Loans) will not be more than 0.50% higher than the interest margins applicable to the extent applicableexisting Initial Term Facility, unless the interest rate margins with respect to the existing Initial Term Facility are increased by each of an amount equal to the parties thereto (ordifference between the interest rate margins with respect to the New Term Loans and the corresponding interest rate margins on the existing Initial Term Facility, minus 0.50%, provided, that if the lowest permissible Eurodollar Rate is greater than 1.00% for such New Term Loans, the difference between such “floor” and 1.00%, in the case of the Eurodollar Rate for such New Term Loans, shall be equated to interest rate margin for purposes of this clause (3) and to the extent the provisions of this clause (3) would require the interest rate margins applicable to the existing Initial Term Loans to be increased, such increase shall first be applied to the “floors” in respect of the existing Initial Term Loans; (4) the proceeds of any party as to which an executed counterpart New Term Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions and Investments permitted by Section 7.7); (5) the New Term Loans shall rank pari passu in right of payment and of Collateral with the existing Initial Term Loans; (6) in the case of any New Term Loans, the maturity date thereof shall not have been received, receipt by be earlier than the Administrative Agent Term Maturity Date applicable to Initial Term Loans and the Weighted Average Life to Maturity shall be equal to or greater than the Weighted Average Life to Maturity of telegraphic, telecopy, electronic communication or other written confirmation the Initial Term Loans that are not New Term Loans; (7) all terms and documentation with respect to any New Term Loans which differ from such party of execution of a counterpart thereof by such party), in each case in form and substance those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent;
, except as set forth in clauses (iv3) and (6) above; (8) such New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Administrative Agent and one or more New Term Lenders; and (9) the Borrowers shall have received deliver or cause to be delivered any customary legal opinionsopinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Initial Term Loans, resolutions as applicable, outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments become effective, subject to the foregoing terms and closing certificates conditions, each lender with a New Term Loan Commitment (each, a “New Term Lender”) shall become a Lender hereunder with respect to such New Term Loan Commitment. The terms and provisions of the New Term Loan Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any New Term Loans or New Term Loan Commitments shall be deemed to be Term Loans and Term Loan Commitments. Each Joinder Agreement may, without the consent of any other documentation Lenders, effect such amendments to this Agreement and the other Loan Documents as it shall reasonably requestmay be necessary or appropriate, in each case in form and substance reasonably satisfactory to the reasonable opinion of the Administrative Agent; and
(v) Agent and the Borrowers, to effect the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provisions of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.25.
Appears in 2 contracts
Sources: Credit Agreement (Vince Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during after the term of this AgreementClosing Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more tranches of term loans (the “Incremental Term Loans”) be made available under this Agreement by Incremental Term Lenders pursuant to the Borrower or one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)Subsidiary Borrowers; provided that both at the time of any such non-existing Lender or financial institution (A) must be an Eligible Assigneerequest and upon the effectiveness of any Incremental Amendment referred to below, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist exist. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, no Incremental Term Loan shall be made if, immediately after giving effect to such Incremental Term Loan, the aggregate outstanding principal amount of the Incremental Term Loans, plus the Total Revolving Commitment at such time, would exceed $2,000,000,000. Each Incremental Term Loan shall (a) rank pari passu in right of payment and of security, if any, with the Revolving Credit Loans and the other Incremental Term Loans, if any; (b) be subject to pricing and maturity agreed to by the Borrower and the Lenders providing such Incremental Term Loan; and (c) not be subject to any scheduled or mandatory principal amortization prior to the Maturity Date (other than customary limited amortization for institutional term loans); provided that except for pricing and maturity (as limited by the preceding paragraph (c)), the terms and conditions applicable to the Incremental Term Loans will be as set forth in this Agreement unless otherwise approved by the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.28 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan. In the case of Incremental Term Loans, the Lenders providing such Incremental Term Loans, with the consent of the Administrative Agent, may agree to allow the Borrower and its Subsidiaries and controlled Affiliates to become Eligible Assignees with respect to such Incremental Term Loans under circumstances, terms and conditions to be agreed at the time of incurrence but in all cases subject to Section 10.3(l). Incremental Term Loans may be made and may be provided by any existing Lender (but no Lender will have an obligation to provide any portion of any Incremental Term Loan) or by any other bank or other financial institution, in each case subject to the request or at the time written consent of the making Administrative Agent to the extent the Administrative Agent would have a right under this Agreement to consent to an assignment of all or any portion of any Lender’s Loans or Revolving Commitment to such existing Lender or bank, or other financial institution (any such other bank or other financial institution being called an “Incremental Lender”). Commitments in respect of Incremental Term Loans shall become commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Fundamental Documents, executed by the Borrower, each Lender agreeing to provide such commitment, each Incremental Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the proposed Borrower and the Administrative Agent, effect such amendments to this Agreement and the other Fundamental Documents (including the amendment and restatement thereof and to provide Incremental Lenders with appropriate voting and loan assignment rights and other provisions reflecting the terms of the applicable Incremental Facility) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.28. The Borrower will use the proceeds of the Incremental Term Loans;
(ii) all conditions precedent Loans for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower any purpose not prohibited by this Agreement. No Lender shall have provided be obligated to provide any portion of any Incremental Term Loan Cash Collateral as required pursuant unless it so agrees. Each Incremental Lender shall become party to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt this Agreement upon acceptance by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof an Incremental Lender Supplement signed by such party), Incremental Lender substantially in each case the form of Exhibit G-2.
(b) This Section 2.28 shall supersede any provisions in form and substance reasonably satisfactory Section 10.9 to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loanscontrary.
Appears in 2 contracts
Sources: Credit Agreement (Wyndham Worldwide Corp), Credit Agreement (Wyndham Worldwide Corp)
Incremental Term Loans. (ai) The Borrower shall have Subject to this Section 2.01(b) and the right from time to time during the term of this Agreement, and subject to the other terms and conditions set forth in this Section 2.17herein, each Lender with an Incremental Term Loan Commitment severally agrees to request in writing incremental make a term loan or term loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) be made under this Agreement by to the Borrower in Dollars during the period from the Closing Date to the Maturity Date in an aggregate amount not to exceed such Lender’s Pro Rata Share of the Aggregate Incremental Term Lenders pursuant Loan Commitment, provided that (A) each such Incremental Term Loan shall be incurred on an Incremental Term Loan Borrowing Date and (B) the aggregate initial principal amount of all Incremental Term Loans made by any Lender shall not exceed such Lender’s Incremental Term Loan Commitment at the time of incurrence thereof. Amounts repaid on the Incremental Term Loans may not be reborrowed. Incremental Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(ii) So long as no Default or Event of Default then exists or would result therefrom, the Borrower shall, in consultation with the Administrative Agent, have the right to request on one or more occasions after the Closing Date and prior to the Maturity Date that the Lenders or, subject to the right of first refusal referred to in clause (B) below, other Persons qualifying as an Eligible Assignee, provide Incremental Term Loan Agreements. Such notice Commitments and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, it being understood and agreed, however, that (A) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any request by the Borrower, until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent shall an Incremental Term Loan Commitment Agreement as provided in Section 2.01(b)(iii) and (y) the other conditions set forth in Section 2.01(b) shall have been satisfied, (B) the date on which Borrower shall first offer each Lender the right to provide such Incremental Term Loans are requested to be made Loan Commitments and each Lender shall have ten (which shall not be less than three (310) Business Days nor more than 60 days after from the date of such receipt of notice (which time periods may be modified or waived at by the discretion Administrative Agent of the Administrative Agent)) and include the applicable completed proposed terms of such Incremental Term Loan Agreement for to decide whether to provide an Incremental Term Loan Commitment (it being understood and agreed that the failure to respond within such 10 Business Day period shall be deemed an election by a Lender not to participate in such Incremental Term Loans Loan), (C) any Lender (or, after the 10 Business Day exercise period referenced above has lapsed, any other Person which will qualify as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Eligible Assignee) may so provide an Incremental Term Loan AgreementCommitment without the consent of any other Lender, such (D) each provision of Incremental Term Loan Commitments pursuant to this Section 2.01(b)(ii) for any Lender shall be in an amount of at least $5,000,000, (E) the sum of the aggregate unfunded Incremental Term Loan Commitments plus the aggregate Outstanding Amount of all Incremental Term Loans shall mature on not at any time exceed ONE HUNDRED MILLION DOLLARS ($100,000,000), (F) the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection Applicable Rate with respect to any such request, Incremental Term Loan and the consent of the Administrative Agent shall be required (such consent not fees payable to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant Commitment shall be as set forth in the relevant Incremental Term Loan Commitment Agreement, (G) in no event shall the Maturity Date of such Incremental Term Loan be earlier than the Maturity Date of the Revolving Loans, (H) the scheduled principal payments with respect to such request) is required to be obtained.
(b) Any such the Incremental Term Loans shall be madeas set forth in the applicable Incremental Term Loan Commitment Agreement, provided that in no event shall the weighted average life to maturity of such Incremental Term Loan be less than the weighted average life to maturity of the Revolving Loans, (I) the applicable Incremental Term Loan shall only be permitted hereunder if (x) the Borrower shall have delivered a Pro Forma Compliance Certificate to the Administrative Agent demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b), and (y) no Default or Event of Default shall exist at the option time or would exist after giving effect to the incurrence of such Incremental Term Loan, and (J) all actions taken by the Borrower pursuant to this Section 2.01(b) shall be done in coordination with the Administrative Agent.
(iii) At the time of any provision of Incremental Term Loan Commitments pursuant to this Section 2.01, the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such the Administrative Agent and each Lender or financial institution referred to in this Section 2.17(b) being called other Eligible Assignee (each an “Incremental Term Loan Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached which agrees to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Commitment shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement (appropriately completed), with the effectiveness of such Lender’s Incremental Term Loan Commitment to occur upon the date set forth in such Incremental Term Loan Commitment Agreement (and such other documentation as subject to any conditions set forth therein not in contravention of the terms hereof) following delivery thereof to the Administrative Agent and the payment of any fees required in connection therewith. The Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no promptly notify each Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event Lender as to the effectiveness of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided each Incremental Term Loan Cash Collateral as required pursuant Commitment Agreement, and at such time Schedule 2.01 shall be deemed modified to Section 6.10 hereof and reflect the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Loan Commitments of such Incremental Term Lenders evidencing such Incremental Term LoansLenders.
Appears in 2 contracts
Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Incremental Term Loans. (a) “The Borrower shall have the right may from time to time during (but no more than three times) after the term Third Amendment Effective Date request one or more new tranches of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under to repurchase Senior Subordinated Notes pursuant to the Note Repurchase; provided, however, that the aggregate amount of all Incremental Term Loans shall not exceed an amount equal to 101% of the aggregate principal amount of the Senior Subordinated Notes repurchased pursuant to the Note Repurchase plus accrued and unpaid interest on such repurchased Senior Subordinated Notes. Nothing in this Agreement by shall be construed to obligate the Administrative Agent, the Arranger or any Lender to negotiate for, solicit to or provide any Incremental Term Lenders pursuant to one or more Loans. Each Incremental Term Loan Agreements. Such notice to shall become effective on a date agreed by the Borrower and the Administrative Agent shall set forth the date on which such (each, an “Incremental Term Loans are requested to be made (Credit Extension Date”), which shall not be less than three (3) Business Days nor more than 60 days in any case on or after the date of such notice (which time periods may be modified or waived at the discretion satisfaction of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or conditions precedent set forth in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeSection 3.2. In connection with any such request, the consent of the The Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at notify the option of Lenders and the Borrower, by (x) one on or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “before 1:00 p.m., New York City time, on the date following a Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan Credit Extension Date of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery effectiveness of an Incremental Term Loan Agreement; provided, further, that no Lender and shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, record in its sole discretion, to provide the Register all applicable additional information in respect of such Incremental Term Loan.
(c) Loans. The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at not have a final maturity earlier than the time of the request or at the time of the making of the proposed Incremental Term Loans;
Loan D Maturity Date, (ii) all conditions precedent for not have a Borrowing set forth in Section 4.02 have been satisfied;
weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loan D Loans, (iii) have an applicable margin that is not more than the Borrower shall have provided Incremental Applicable Margin on the Term Loan Cash Collateral as required pursuant D Loans (after giving effect to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, increase in the case of any party as to which an executed counterpart shall not have been received, receipt by Applicable Margin for the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partyTerm Loan D Loans), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) share with the Administrative Agent shall have received customary legal opinionsTerm Loan D Loans, resolutions and closing certificates and other documentation as it shall reasonably requeston a pro rata basis, in each case in form and substance reasonably satisfactory to any mandatory or optional prepayments made by the Administrative Agent; and
Borrower, (v) to have the extent requested same guarantees as, and be secured on a pari passu basis by any Incremental Term Lender making an Incremental Term Loanthe same Collateral securing, the Borrower shall Term Loan D Loans and (vi) have executed the same terms and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansconditions as the other Loans (except for any differences permitted hereby).”
Appears in 2 contracts
Sources: Credit Agreement (CBD Media Holdings LLC), Credit Agreement (CBD Media LLC)
Incremental Term Loans. At any time after the Closing Date, but not more than twice, the Company may request that the Aggregate Term Loan Commitment be increased from zero in order to accommodate an incremental single-draw installment of Term Loans (aeach, an “Incremental Term Loan”) The Borrower solely with the consent of each Lender participating in such Incremental Term Loan; provided, however, that without the prior written consent of each Lender, the aggregate initial principal amount of all Incremental Term Loans made pursuant to this Section 2.2(b), together with the aggregate amount of all increases in the Aggregate Revolving Loan Commitment pursuant to Section 2.5(c), shall not exceed $300,000,000. Each such request shall be in a minimum amount of at least $10,000,000 and increments of $5,000,000 in excess thereof. Each request shall be made in a written notice given to the Agent and the Term Loan Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Term Loan Commitment Increase Notice”) shall specify the amount of the proposed amount of the increase in the Aggregate Term Loan Commitment, the corresponding amount of the Incremental Term Loan and the proposed effective date therefor, which shall also be the proposed Borrowing Date for such Incremental Term Loan. In the event of such a Term Loan Commitment Increase Notice, each of the Term Loan Lenders shall be given the opportunity to participate in the requested Incremental Term Loan in proportion to their respective then current Term Loan Pro Rata Shares thereof. On or prior to the date that is fifteen (15) Business Days after receipt of the Term Loan Commitment Increase Notice, each Term Loan Lender shall submit to the Agent a notice indicating the maximum amount by which it is willing to assume an Incremental Term Loan Commitment in connection with such Term Loan Commitment Increase Notice (any such notice to the Agent being herein a “Term Loan Lender Increase Notice”). Any Term Loan Lender which does not submit a Term Loan Lender Increase Notice to the Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied an Incremental Term Loan Commitment. In the event that the Incremental Term Loan Commitments set forth in the Term Loan Lender Increase Notices exceed the amount requested by the Company in the Term Loan Commitment Increase Notice, the Agent and the Arrangers for the Term Loan Facility shall have the right from time to time during right, with the term consent of this Agreement, and subject to the terms and conditions set forth in this Section 2.17Company, to request in writing incremental term loans (allocate the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more amount of Incremental Term Loan AgreementsCommitments necessary to meet the Company’s Term Loan Commitment Increase Notice. Such notice to In the Administrative Agent shall set forth event that the date on which such Incremental Term Loans Loan Lender Increase Notices are less than the amount requested to be made (which shall by the Company, not be less later than three (3) Business Days nor more than 60 days after prior to the proposed effective date the Company may notify the Agent of any financial institution that shall have agreed to become a “Term Loan Lender” party hereto (a “Proposed New Term Loan Lender”) in connection with the Term Loan Commitment Increase Notice. Any Proposed New Term Loan Lender shall be subject to the consent of the Agent (which consent shall not be unreasonably withheld or delayed). If the Company shall not have arranged any Proposed New Term Loan Lender(s) to commit to the shortfall from the Term Loan Commitment Increase Notice, then the Company shall be deemed to have reduced the amount of its Term Loan Commitment Increase Notice to the aggregate amount set forth in the Term Loan Lender Increase Notices. Based upon the Term Loan Commitment Increase Notice, any allocations made in connection therewith and any notice regarding any Proposed New Term Loan Lender, if applicable, the Agent shall notify the Company and all of the Lenders (including the Revolving Lenders) on or before the Business Day immediately prior to the proposed effective date of such notice the amount of each Term Loan Lender’s and Proposed New Term Loan Lender’s incremental Term Loan Commitment (the “Effective Term Loan Commitment Amount”) and the aggregate amount of the Incremental Term Loans, which amounts shall be effective on the following Business Day (which time periods may shall also be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement Borrowing Date for such Incremental Term Loans as an attachment thereto; provided thatLoan). Without limiting the provisions of Section 4.3, notwithstanding anything to any increase in the contrary contained herein or in any Incremental Aggregate Term Loan Agreement, such Incremental Term Loans shall mature on Commitment and the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent concurrent funding of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at subject to the option following conditions precedent: (I) as of the Borrower, by date of the Term Loan Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Term Loan Commitment all representations and warranties shall be true and correct in all material respects as though made on such date (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date) and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the Borrowers, the Agent and each Proposed New Term Loan Lender or financial institution referred Term Loan Lender that shall have agreed to provide a “Term Loan Commitment” in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any support of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent shall have executed and the Borrower delivered a Commitment and Acceptance, (CIII) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide counsel for the requested Incremental Term Loans.
(d) Notwithstanding Borrowers and for the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower Guarantors shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent;
Agent and (ivIV) the Administrative Agent Borrowers and each Proposed New Term Loan Lender shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Term Loan Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Company. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Term Loan Commitment, the Agent shall notify the Company of the amount of the fee to be charged by the Term Loan Lenders, and the Company may, at least one (1) Business Day prior to such effective date, cancel its request for the commitment increase. If the commitment increase is cancelled pursuant to the immediately preceding sentence, the Company’s cancelled increase request shall not be counted towards the Company’s two Incremental Term Notes Loan requests permitted by the first sentence of this Section 2.2(b). Upon satisfaction of the conditions precedent to any increase in favor the Aggregate Term Loan Commitment, the Agent shall promptly advise the Company and each Lender (including the Revolving Lenders) of the effective date of such increase. Upon the effective date of any increase in the Aggregate Term Loan Commitment that is supported by a Proposed New Term Loan Lender, such Proposed New Term Loan Lender shall be a party to this Agreement as a Term Loan Lender and shall have the rights and obligations of a Term Loan Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Term Loan Lender to increase its Term Loan Commitment hereunder at any time. Each Incremental Term Lenders evidencing such Incremental Loan shall mature on the Revolving Loan Termination Date and shall amortize pursuant to paragraph (c)(i) below in installments proportionate to the then remaining installments of the Initial Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Incremental Term Loans. (a) The US Borrower shall have the right from time to time during the term of this Agreementmay at any time, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion promptly deliver a copy to each of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedLenders), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) request one or more existing Lenders and/or additional tranches of term loans (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called each, an “Incremental Term LenderLoan”); provided provided, that (i) at the time that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent is made (and the Borrower and after giving effect thereto), (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iA) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
have occurred and be continuing, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiB) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedTotal Leverage Ratio on a Pro Forma Basis (including, to the extent applicableany Permitted Acquisition or Subsidiary Redesignation has occurred during the applicable Test Period, by each giving effect to such Permitted Acquisition and/or Subsidiary Redesignation on a Pro Forma Basis) after giving effect to the incurrence of the parties thereto (orIncremental Term Loans and the application of the proceeds therefrom, in as of the case last day of any party as to which an executed counterpart the most recently ended four fiscal quarters of the US Borrower, shall not have been receivedexceed 4.25 to 1.00, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivC) the Administrative Agent US Borrower shall have received customary legal opinionsbe in compliance, resolutions and closing certificates and other documentation as it shall reasonably requeston a Pro Forma Basis (including, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term LoanPermitted Acquisition or Subsidiary Redesignation has occurred during the applicable Test Period, giving effect to such Permitted Acquisition and/or Subsidiary Redesignation on a Pro Forma Basis) after giving effect to the Borrower shall have executed and delivered Incremental Term Notes in favor incurrence of such Incremental Term Loans and the application of the proceeds therefrom, with Section 7.09 and Section 7.10 of this Agreement computed as if such Indebtedness had been outstanding during the most recently ended period of four consecutive fiscal quarters of the US Borrower, (D) the incurrence of any such Incremental Term Loans has been duly authorized by the US Borrower and (E) the US Borrower has delivered to the Administrative Agent a certificate to the effect set forth in clauses (A), (B), (C) and (D) above, together with all relevant calculations related thereto; and (ii) the US Borrower shall promptly after the US Borrower receives the proceeds from the incurrence of any Incremental Term Loans, pay Dividends to Holdings (and, at the option of the US Borrower, related transaction costs) with such proceeds and Holdings shall promptly thereafter utilize the proceeds of such Dividends to redeem, repurchase or repay Holdings Notes or Permitted Holdings Refinancing Indebtedness in accordance with Section 7.12(a)(iv). The Incremental Term Loans (a) shall be in an aggregate principal amount not in excess of $325,000,000 (less the aggregate principal amount of Additional Senior Subordinated Notes issued pursuant to Section 7.04(o)), (b) shall rank pari passu in right of payment, security and guarantees with the Revolving Loans and the Term Loans, (c) shall not mature earlier than the Term Loan Maturity Date (but may, subject to clause (d) below, have amortization prior to such date), (d) shall not have a weighted average life that is shorter than that of the then-remaining Term Loans, (e) shall accrue interest at a rate determined at the time the commitments to provide such Incremental Term Loans are obtained (it being understood that the Incremental Term Loans may be priced differently from the Term Loans) and (f) shall, except as set forth above, have terms identical to and be treated the same as the Term Loans for all purposes of the Credit Documents (including with respect to mandatory and voluntary prepayments), provided that if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders evidencing providing such Incremental Term Loan) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed not to include any upfront or similar fees or original issue discount payable to the Lenders of Term Loans) relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Term Loan Amendment by more than 0.50%, then the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. In lieu of requesting an additional tranche of term loans, the US Borrower may, in such notice, request that the Incremental Term Loans constitute additional Term Loans which shall have terms identical to the existing Term Loans. Such notice shall set forth (1) the requested amount of Incremental Term Loans, together with all relevant calculations confirming compliance with sub-clause (i) of the fourth preceding sentence, and (2) the proposed terms of the Incremental Term Loans (or, if applicable, that the US Borrower wishes that the Incremental Term Loans constitute additional Term Loans which shall have terms identical to the existing Term Loans).
(b) The US Borrower may arrange for one or more banks, financial institutions or other Persons (including existing Lenders) reasonably acceptable to the Administrative Agent (any such bank, financial institution or other Person being called an “Additional Lender”) to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. All commitments in respect of Incremental Term Loans (the “Incremental Term Loan Commitments”) shall become Commitments under this Agreement, and all Additional Lenders that are not already Lenders shall become Lenders under this Agreement, pursuant to an amendment (the “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by Holdings, the Borrowers and, as appropriate, each other Credit Party, each Additional Lender and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of the Incremental Term Loan Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in
Section 4.01 (it being understood that all references to “the time of each such Credit Event” and “the date of such Credit Event” in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Term Loan Amendment) and such other conditions as the parties thereto shall agree. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.
Appears in 2 contracts
Sources: Credit Agreement (Compass Minerals International Inc), Credit Agreement (Compass Minerals International Inc)
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term of this Agreement, and subject Agreement Date by written notice to the terms and conditions set forth in this Section 2.17Administrative Agent, elect to request in writing incremental one or more new additional tranches of Term Loans which may be of the same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Loan Commitments”), which may take the form of delayed draw term loans loan commitments (the “Incremental Delayed Draw Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Loan Commitments” and together with the Incremental Term Loan AgreementsCommitments, the “Incremental Term Commitments”); provided that Term Loans made under such Incremental Delayed Draw Term Loan Commitments may be designated a separate Class of Term Loans or a part of a Class of existing Term Loans. Such notice Any request under this Section 2.2 shall specify the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be provided by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Term Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Term Loan Commitment, an “Incremental Term Loan Lender”) or Incremental Delayed Draw Term Loan Commitment (each such existing Lender or Additional Lender providing such Incremental Delayed Draw Term Loan Commitment, an “Incremental Delayed Draw Term Loan Lender” and, together with the Incremental Term Loan Lenders, the “Incremental Term Lenders”), as applicable; provided that the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant ) to such request) is Additional Lender’s making such Incremental Loans to the extent such consent, if any, would be required under Section 13.2 for an assignment of Term Loans to be obtainedsuch Additional Lender.
(b) Any such The aggregate principal amount of outstanding Incremental Loans shall not exceed the Available Incremental Amount at the time incurred (subject to Section 1.3(m)).
(c) On any date on which any Incremental Term Loans shall be madeCommitments of any Class are effected (including, at without limitation, any Incremental Delayed Draw Term Loan Commitments and through any Term Loan Increase) (each such date an “Incremental Tranche Agreement Date”), subject to the option satisfaction of the Borrowerterms and conditions in this Section 2.2, by (i) (x) one each Incremental Term Loan Lender with an Incremental Term Loan Commitment of any Class shall make a Term Loan to the Borrower or more existing Lenders and/or applicable Loan Party (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan”) in an amount equal to its Incremental Term Loan Commitment of such Class on the Incremental Tranche Agreement Date and (y) each Incremental Delayed Draw Term Loan Lender with an Incremental Delayed Draw Term Loan Commitment of any Class shall provide commitments to make term loans to the Borrower or applicable Loan Party in an amount equal to its Incremental Delayed Draw Term Loan Commitment of such Class (such term loans, once made, an “Incremental Delayed Draw Term Loan”, and, together with the Incremental Term Loans, the “Incremental Loans”) in an and (ii) 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 Loans of such Class made pursuant thereto.
(d) The terms, provisions and documentation of any Incremental Loan or any Incremental Term Commitment shall be as agreed between the Borrower and the applicable Incremental Term Lenders providing such Incremental Loans or Incremental Term Commitments, and except as otherwise set forth herein, to the extent not substantially consistent with any Class of Term Loans existing on the Incremental Tranche Agreement Date (as determined by the Borrower), shall be consistent with clauses (i) through (iii) below, as applicable. Notwithstanding the foregoing, in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be identical (other than with respect to underwriting, commitment or upfront fees, original issue discount or similar fees) to the applicable Term Loans being increased. In any event,
(i) each Incremental Loan or Incremental Term Commitment:
(A) shall rank pari passu in right of payment with the other Term Loans or Commitments, as applicable, of such Class, shall be secured by Liens on the Collateral ranking pari passu in right of security with Liens on the Collateral securing the other Term Loans or Commitments, as applicable, of such Class; provided that any such non-existing Lender or financial institution (A) must Incremental Loans secured by the Collateral shall be an Eligible Assignee, subject to the Pari Passu Intercreditor Agreement;
(B) must have an may be provided in any currency mutually agreed among the Administrative Agent, the Borrower, and the applicable Incremental Term Loan Lenders;
(C) except with respect to Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Maturity Date, the maturity date of at least $5,000,000 unless otherwise agreed any Incremental Loans shall not be earlier than the Maturity Date and the Weighted Average Life to Maturity of the Incremental Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(D) shall have fees and, subject to clause (d)(i)(C) above, amortization determined by the Administrative Agent and the Borrower and (C) must become an the applicable Incremental Term Lender under this Agreement by execution and delivery Lenders;
(E) may, in the case of an Incremental Term Loan or Incremental Term Commitment that is pari passu in right of payment and right of security with the Term Loans, provide for the ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Term Amendment; and
(F) the Borrower and any Restricted Subsidiary may use the proceeds, if any, of the Incremental Loans and/or Incremental Term Commitments for any purpose not prohibited by this Agreement.
(ii) the All-In-Yield applicable to the Incremental Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Incremental Term Amendment; provided, furtherhowever, that no Lender with respect to any Subject Facility that is (a) is denominated in Dollars, (b) is secured by a Lien on the Collateral ranking on a pari passu basis with the Liens on the Collateral securing the Initial Term Loans, (c) is not subordinated to the Initial Term Loans in the right of payment, (d) is not an Excluded Facility and (e) is made prior to the date that is twelve (12) months after the Agreement Date, 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 with respect to the Initial Term Loans plus 50 basis points per annum, unless the Interest Rate (together with, as provided in the proviso below, the Term SOFR or Base Rate floor) with respect to such Initial Term Loans is increased so as to cause the then applicable All-In-Yield under this Agreement on such Initial Term Loans to equal the All-In-Yield then applicable to the Incremental Loans minus 50 basis points; provided that any increase in All-In-Yield to the Initial Term Loans due to the application of a Term SOFR floor or Base Rate floor on any Incremental Loan shall be required effected solely through an increase in (or implementation of, as applicable) any Term SOFR floor or Base Rate floor applicable to become the Initial Term Loans (the “MFN Protection”); provided Incremental Equivalent Debt that is secured by a Lien on the Collateral ranking on a pari passu basis with the Lien on the Collateral securing the Obligations shall be subject to the MFN Protection as if such Incremental Equivalent Debt were an Incremental Term Lender and any Lender Loan; and
(iii) there shall be no borrowers or financial institution approached to provide an guarantors in respect of such Incremental Term Loan may elect that are not the Borrower or declinea Guarantor, in its sole discretionand, to provide the extent secured, Incremental Loans shall not be secured by assets other than Collateral (except pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term LoanLoans) (the foregoing clauses (d)(i)(C), (d)(i)(E) and, solely to the extent the extent the applicable Incremental Equivalent Debt consists of senior secured term loans that are secured by a Lien on the Collateral ranking on a pari passu basis with the Lien on the Collateral securing the Obligations, (d)(iii), collectively, the “Required Additional Debt Terms”).
(ce) The Borrower and each No Incremental Loans or Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective unless and no Incremental Term Loans shall be provided under this Section 2.17 unlessuntil each of the following conditions has been satisfied:
(i) no Default or Event any such Incremental Loan shall be in a minimum principal amount of Default shall exist at $5,000,000 and in integral multiples of $1,000,000 in excess thereof, unless otherwise agreed by the time of Borrower and the request or at the time of the making of the proposed Incremental Term LoansAdministrative Agent;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 the Borrower, any Additional Lender and the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall have been satisfiedexecuted and delivered an Incremental Term Amendment;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof paid such fees and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, other compensation to the extent applicable, by each of Additional Lenders as the parties thereto (or, in the case of any party as to which an executed counterpart Borrower and such Additional Lenders shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agentagree;
(iv) the Administrative Agent Borrower shall have received customary legal opinionsdeliver on Incremental Tranche Agreement Date a certificate certifying that (A) (other than with respect to an Incremental Loan incurred in connection with a Permitted Acquisition or any other Investment or refinancing unless required by the Incremental Term Lenders providing such Incremental Loans and/or Incremental Term Commitments, resolutions and closing certificates and other documentation as it shall reasonably requestapplicable, in which case the only representations that the Borrower or any Obligor shall be required to make are customary specified representations) the representations and warranties made by the Borrower and each case Guarantor contained herein and in form the other Loan Documents are true and substance reasonably satisfactory correct in all material respects on and as of such Incremental Tranche Agreement Date, except to the Administrative Agentextent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects, as of such specified earlier date, provided that in the case of Incremental Loans incurred in connection with a Limited Condition Transaction, the only representations and warranties that the Borrower shall be required to certify shall be customary specified representations and (B) no Specified Default has occurred and is continuing; and
(v) to the extent requested by effectiveness of any Incremental Term Lender Amendment and the occurrence of any credit event (including the making an of a Loan thereunder) pursuant to such Incremental Term Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree.
(f) In connection with any Incremental Loan, the Additional Lenders, the Borrower and the Administrative Agent (such consent not be unreasonably withheld, delayed or conditioned) agree to enter into any amendment required to incorporate the addition of the Incremental Loans, the pricing of the Incremental Loans, the maturity date of the Incremental Loans and such other amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith, including, without limitation amendments to provide for (i) the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders, amendments to permit purchases of Incremental Loans by the Borrower or any of its Affiliates (which shall have executed be cancelled upon purchase by the Borrower or any Subsidiary) (provided that such purchases by an Affiliate of the Borrower other than a Subsidiary shall be subject to customary restrictions to be agreed with the Additional Lenders providing such Incremental Loans and delivered the Administrative Agent), (ii) amendments to properly reflect the pari passu or junior right of payment or priority with respect to the Collateral (each an “Incremental Term Notes in favor Amendment”) and (iii) solely with respect to Incremental Delay Draw Term Loan Commitments, amendments to reflect the delayed draw nature of such Incremental Term Commitments. The Lenders evidencing hereby irrevocably authorize the Administrative Agent to enter into such Incremental Term Loansamendments.
(g) Notwithstanding anything herein to the contrary, this Section 2.2 shall supersede any provisions in Section 13.1 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Herc Holdings Inc), Credit Agreement (Herc Holdings Inc)
Incremental Term Loans. (ai) The Subject to the terms and conditions set forth herein, the Borrower shall have the right right, at any time and from time to time during from the Closing Date until the Incremental Term Loan Commitment Termination Date, to request term loans (“Incremental Term Loans”) in up to three (3) Borrowings (individually, an “Incremental Term Loan Borrowing” and collectively, the “Incremental Term Loan Borrowings”), each in a minimum amount of this Agreement$50,000,000 and integral multiples of $1,000,000 in excess thereof (provided, however, that if the aggregate amount of the prior Incremental Term Loan Borrowings exceeds $100,000,000, then the final Incremental Term Loan Borrowing may be made in an amount equal to the remaining amount of the unused Incremental Term Loan Commitment Amount). The following additional terms and conditions shall apply to any Incremental Term Loan Borrowing: (i) any such borrowing shall be obtained from existing Lenders or from other banks or other financial institutions, in each case in accordance with the terms set forth below and in Section 5.2(a) hereof, (ii) any such borrowing shall amortize in accordance with the amortization schedule set forth in Section 3.1(h)(ii) hereof and the interest rate thereon shall be determined in accordance with Section 5.2(b) hereof, and (iii) Schedule II shall be amended by the Administrative Agent (without the consent or approval of the Required Lenders) to include the applicable Incremental Term Loan Commitments and the Incremental Term Loan Lenders.
(ii) The amount of any Incremental Term Loan Borrowing hereunder shall be offered first to the existing Lenders, and in the event the additional commitments which existing Lenders are willing to take shall exceed the amount requested by the Borrower, such excess shall be allocated at the discretion of the Administrative Agent and the Borrower. If the amount of the Incremental Term Loan Borrowings requested by the Borrower shall exceed the additional commitments which the existing Lenders are willing to take, then the Borrower and the Administrative Agent may invite other banks and financial institutions reasonably acceptable to the Borrower and the Administrative Agent to join this Agreement as Lenders hereunder for the portion of commitments not taken by existing Lenders, provided that such other banks and financial institutions shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. Each Lender may determine in its sole discretion whether to take any such requested additional commitments for Incremental Term Loans.
(iii) On and after the date that the Incremental Term Loan Lenders have issued their Incremental Term Loan Commitments for an Incremental Term Loan Borrowing, subject to the terms and conditions set forth in this Section 2.17Agreement, from time to request in writing incremental term loans time on any Business Day occurring thereafter but prior to the earlier of (x) thirty (30) days following the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more date on which all of the related Incremental Term Loan AgreementsCommitments have been received by the Borrower and (y) the Incremental Term Loan Commitment Termination Date, each Incremental Term Loan Lender will make Incremental Term Loans to the Borrower equal to such Incremental Term Loan Lender’s Percentage of the aggregate amount of the Incremental Term Loan Borrowing requested by the Borrower to be made on such day. Such notice No amounts paid or prepaid with respect to Incremental Term Loans may be reborrowed. Each request for an Incremental Term Loan Borrowing shall be delivered to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall or before 1:00 p.m., Charlotte time, on a Business Day, not be less than three (3) one Business Days nor more than 60 days after the date of such Day’s notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall Base Rate Loans, or three Business Days’ notice in the case of LIBO Rate Loans, and in either case not have been receivedmore than five Business Days’ notice, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory prior to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any date of borrowing. Incremental Term Lender making Loans which are Base Rate Loans shall be made in a minimum amount of $2,000,000 and an integral multiple of $1,000,000 and Incremental Term Loan, the Borrower Loans which are LIBO Rate Loans shall have executed be made in a minimum amount of $3,000,000 and delivered Incremental Term Notes in favor an integral multiple of such Incremental Term Lenders evidencing such Incremental Term Loans$1,000,000.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Titan Corp)
Incremental Term Loans. (a) The Each Incremental Term Loan Amendment Lender hereby agrees, severally and not jointly, to make an Incremental Term Loan to the Borrower shall have at the right from time Incremental Term Loan Amendment Effective Time in an aggregate principal amount equal to time during the term of this amount set forth opposite such Incremental Term Loan Amendment Lender’s name on Schedule I attached hereto, on the terms set forth herein and in the Amended Credit Agreement, and subject to the conditions set forth below. The Incremental Term Loans shall be deemed to be “Term Loans” as defined in the Amended Credit Agreement for all purposes of the Credit Agreement and the other Loan Documents having terms and conditions provisions identical to those applicable to the Term Loans outstanding on the date hereof immediately prior to the Incremental Term Loan Amendment Effective Time except as otherwise set forth in this Section 2.17, to request in writing incremental term loans Amendment (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentincluding Annex A hereto)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madeUnless previously terminated, at the option commitments of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of Amendment Lenders pursuant to Section 2(a) shall terminate at least $5,000,000 unless otherwise agreed to by 6:00 p.m., New York City time, on the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanAmendment Effective Date.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Each Incremental Term Loan pursuant Amendment Lender: (i) confirms that a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement therein and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective documents and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation information as it shall reasonably request, in each case in form has deemed appropriate to make its own credit analysis and substance reasonably satisfactory decision to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making enter into this Amendment and make an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of has been made available to such Incremental Term Lenders evidencing Loan Amendment Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any of Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lending Partners LLC or Jefferies Finance LLC, in their capacities as joint lead arrangers and joint bookrunners with respect to this Amendment or any other debt financing transactions forming part of the Transactions (collectively, the “Arrangers”), or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other Loan Documents, including this Amendment; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Incremental Term Loan Amendment Effective Time such Incremental Term LoansLoan Amendment Lender shall be a “Lender” and an “Additional Term Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender and an Additional Term Lender thereunder.
Appears in 2 contracts
Sources: Incremental Term Loan Amendment (Endurance International Group Holdings, Inc.), Incremental Term Loan Amendment (Constant Contact, Inc.)
Incremental Term Loans. (a) The Borrower shall have and any one or more Lenders (including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrower, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms and conditions set forth Administrative Agent (each such Lender, an “Incremental Term Loan Lender”), may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to in its sole discretion), that such Incremental Term Loan Lenders shall make one or more additional term loan credit facilities available to the Borrower under this Section 2.172.1.1(b) (each an “Incremental Term Loan Facility” and collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to or Incremental Term Loan Commitment shall be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrower, the Administrative Agent shall set forth Agent, and the date on which Incremental Term Loan Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which shall not be less than three (3i) Business Days nor more than 60 days after the date aggregate principal amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed all Incremental Term Loan Agreement Commitments shall not exceed the Maximum Incremental Amount; (ii) the Stated Maturity Date of any Incremental Term Loan shall be on or after the Stated Maturity Date for the Term A-1 Loans, determined as of the initial funding date for such Incremental Term Loans as an attachment theretoLoans; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed would reasonably be expected to result after giving Pro Forma Effect to any Incremental Term Loans;
Loan; (iiiv) all conditions precedent for the Borrower shall deliver a Borrowing Compliance Certificate to the Administrative Agent evidencing compliance with the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4 after giving Pro Forma Effect to any Incremental Term Loan; (iiiv) the proceeds of any Incremental Term Loan shall be used solely for the purposes described in Section 4.10; (vi) to the extent Section 4.10 permits any proceeds of any Incremental Term Loan to be used to acquire any additional Real Property, each of the conditions set forth in Sections 5.2.1, 5.2.2, and 5.3 shall be fulfilled to the satisfaction of the Administrative Agent; (vii) the weighted average life of any Incremental Term Loan shall be equal to or greater than the remaining weighted average life of the Term A-1 Loans, determined as of the initial funding date for such Incremental Term Loan; (viii) to the extent that the applicable interest rate margin on any Incremental Term Loan exceeds by more than 0.25% the applicable interest rate margin for the Term A-3 Loans, determined as of the initial funding date for such Incremental Term Loan, (A) the applicable interest rate margin for the Term A-3 Loans shall be increased so that the applicable interest rate margin for such Incremental Term Loan does not exceed the applicable interest rate margin for the Term A-3 Loans by more than 0.25% and (B) the applicable interest rate margin for each of the other credit facilities existing on such date shall be increased by the same amount of basis points as the Term A-3 Loans are so increased, if any; (ix) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; (x) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans; and (xi) the Borrower shall have provided Incremental Term Loan Cash Collateral delivered any modifications or additional Real Property Documents as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, requested in its sole discretion pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 2 contracts
Sources: Term a 4 Loan Credit Facility (CatchMark Timber Trust, Inc.), Credit Agreement (CatchMark Timber Trust, Inc.)
Incremental Term Loans. The Borrower may on no more than two occasions during the period beginning on the Effective Date to and including the date that is six months prior to the Maturity Date, provided that no Qualified Acquisition Period is then in existence, enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Term Loans does not exceed $250,000,000. The Borrower may arrange for any such tranche to be provided by one or more Lenders or new banks, financial institutions or other entities (each, an “Incremental Term Loan Lender”); provided that (i) each Incremental Term Loan Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”) and (ii) no Lender shall be required to participate in any tranche of Incremental Term Loans. No consent of any Lender (other than the Lenders participating in any Incremental Term Loan) shall be required for any Incremental Term Loan pursuant to this Section 2.20. Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the Incremental Term Loan Lenders and the Administrative Agent shall notify each Lender thereof. Upon the effectiveness of any Accession Agreement to which any Incremental Term Loan Lender is a party, such Incremental Term Loan Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Term Loan Lender hereunder and subject to all obligations of a Term Loan Lender hereunder. Notwithstanding the foregoing, no tranche of Incremental Term Loans shall become effective under this Section unless, (i) on the proposed date of the effectiveness of such Incremental Term Loans, (A) the conditions set forth in paragraphs (a) The and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (B) the Borrower shall be in compliance on a pro forma basis (giving effect to the use of proceeds of such Incremental Term Loan) with the covenants contained in Section 6.12 and (ii) the Administrative Agent shall have received documents consistent with those delivered on the right from time Effective Date as to time during the term organizational power and authority of this Agreementthe Borrower to borrow such Incremental Term Loans. On the effective date of any Incremental Term Loans being made, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender shall make a loan to the Administrative Agent shall set forth Borrower in an amount equal to its pro rata portion of the date on which tranche of such Incremental Term Loans are requested to be made (which and such loan shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing constitute an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such for purposes hereof. The Incremental Term Loans shall be made, at Term Loans for all purposes hereunder and the option terms of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be identical to the Term Loans advanced on the Effective Date; provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at that the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing Loans shall amortize as set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans2.09.
Appears in 2 contracts
Sources: Credit Agreement (Service Corp International), Credit Agreement (Service Corp International)
Incremental Term Loans. (a) The Borrower shall have Notwithstanding anything contained in the right from time Existing Financing Agreement, each Incremental Lender hereby agrees, severally and not jointly, to time during make an Incremental Term Loan to the term of this AgreementBorrowers on the Incremental Effective Date in an aggregate principal amount equal to the amount set forth opposite such Incremental Lender’s name on Annex I hereto (the “Incremental Term Loan Commitments”), on the terms set forth herein, and subject to the terms and conditions set forth in this Section 2.17, 5 below. The Incremental Term Loans shall be deemed to request in writing incremental term loans (the be “Incremental Term Loans”) ” as contemplated by Section 2.13 of the Financing Agreement and shall be deemed to be “Term Loans” for all purposes of the Financing Agreement and the other Loan Documents, and having terms and provisions identical to those applicable to, the Term Loans made under this Agreement by Incremental Term Lenders on the Effective Date pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion Section 2.01 of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoExisting Financing Agreement; provided that, notwithstanding anything to that the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on be subject to the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, payment of those fees described in the consent of the Administrative Agent shall be required Incremental Fee Letter (such consent not to be unreasonably withheld, conditioned or delayedas defined below), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Each Incremental Term Loans shall be made, at the option Lender hereby: (i) confirms that a copy of the BorrowerFinancing Agreement and the other applicable Loan Documents, by (x) one or more existing Lenders and/or (y) one or more together with copies of the financial institutions that is not an existing Lender (any such Lender or financial institution statements referred to in therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have Agreement and make an Incremental Term Loan of at least $5,000,000 unless otherwise agreed has been made available to such Incremental Lender by the Administrative Agent; (ii) agrees that it will, independently and without reliance upon the Agent or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Financing Agreement or the other applicable Loan Documents, including this Agreement; (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Financing Agreement and the Borrower other Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (Civ) must become an acknowledges and agrees that, upon the Incremental Term Lender under this Agreement by execution and delivery of an Effective Date, such Incremental Term Loan Agreement; provided, further, that no Lender shall be required a “Lender”, under, and for all purposes of, the Financing Agreement and the other Loan Documents, and shall be subject to become an Incremental Term and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loanthereunder.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Commitments shall execute and deliver to automatically terminate upon the Administrative Agent an Incremental Term Loan Agreement and such other documentation as funding of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at on the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansEffective Date.
Appears in 2 contracts
Sources: Incremental Joinder and Amendment No. 1 (ITHAX Acquisition Corp.), Incremental Joinder and Amendment No. 1 (ITHAX Acquisition Corp.)
Incremental Term Loans. (ai) The In addition to Term Loans to be made pursuant to Section 2.1(b) hereof, the Borrower shall have the right from may at any time to time during the term of this Agreement, and subject prior to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such Maturity Date, by delivering written notice to the Administrative Agent shall set forth Agent, request that the date on which such Incremental Term Loans are requested Lenders (or other financial institutions (the “New Lenders”) agreed to be made (which shall not be less than three (3) Business Days nor more than 60 days after by the date of such notice (which time periods may be modified or waived at the discretion of Borrower and reasonably acceptable to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent in respect thereof not to be unreasonably withheld) commit to make Incremental Term Loans in an aggregate principal amount of not less than $10,000,000 and not more than $50,000,000. The Borrower may request Incremental Term Loans at any time and from time to time, conditioned subject to the conditions and provisions set forth herein. In the event that one or delayed)more of the Lenders (or New Lenders) offer, but no consent in their sole discretion, to enter into such commitments, and such Lenders (or New Lenders) and the Borrower agree as to the amount of any Lender such commitments that shall be allocated to the respective Lenders (other than any Lender providing or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders (or New Lenders) shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan pursuant Commitments. The Administrative Agent’s agreement to arrange and syndicate any such request) is required Incremental Term Loan Commitments shall not be deemed to constitute a commitment, or an offer, to provide, such Incremental Term Loan Commitments or a representation, direct or implied, that such arrangement and syndication will be obtainedsuccessful. No Lender shall have any obligation to commit to any Incremental Term Loan Commitments and the Borrower shall have no obligation to request Incremental Term Loan Commitments.
(bii) Any If the Borrower makes a request for Incremental Term Loan Commitments and the Administrative Agent is able to successfully obtain such Incremental Term Loans shall be madeLoan Commitments and reach agreement with the Borrower and Incremental Term Lenders as described in clause (i) above, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender Loan Lenders shall execute and deliver an agreement (the “Incremental Term Loan Agreement”) setting forth the terms and conditions of the Incremental Term Loans, and the Incremental Term Lenders shall become obligated to make Incremental Term Loans under this Agreement by execution and delivery in an amount equal to the amount of an their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement; provided, further, provided that no Lender shall be required to become an (v) the final maturity of the Incremental Term Lender and any Lender or financial institution approached to provide an Loans (such date, the “Incremental Term Loan may elect or declineMaturity Date”) shall be the Term Loan Maturity Date, (w) without the prior consent of the Required Lenders, in its sole discretion, to provide such no event shall the Applicable Margin for the Incremental Term Loan.
Loans be more than 0.25% greater than the respective Applicable Margin for Term Loans set forth in the definition of “Applicable Margin”, (cx) The Borrower and each the weighted average life to maturity of the Incremental Term Lender that has agreed Loans shall approximately equal the weighted average life to provide an Incremental maturity of the then outstanding Term Loan pursuant to such request Loans, (y) the Credit Parties shall execute and deliver be in compliance with Section 7.9 as of the last day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as prior to the Administrative Agent shall reasonably specify to provide for date of the requested proposed incurrence of any Incremental Term Loans.
(d) Notwithstanding , after giving effect, on a pro forma basis, to the foregoing, no Incremental Term Loan Agreement shall become effective and no incurrence of the Incremental Term Loans shall proposed to be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at incurred and the time application of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) proceeds thereof, and the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant delivered to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution a certificate of a counterpart thereof by Financial Officer showing such party), calculations in each case in form reasonable detail to demonstrate such compliance and substance reasonably satisfactory to the Administrative Agent;
(ivz) the Administrative Agent shall have received customary legal opinionsa certificate, resolutions dated the effective date of the Incremental Term Loan Agreement and closing certificates and other documentation as it shall reasonably requestsigned by the President, in each case in form and substance reasonably satisfactory a Vice President or a Financial Officer of the Borrower, certifying that the obligations of the Credit Parties with respect to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes Loans described in favor of such Incremental Term Lenders evidencing Loan Agreement are permitted to be incurred and secured by the assets of the Credit Parties as “Senior Indebtedness” under the Senior Subordinated Note Indenture and the indenture pursuant to which the Holding Company Notes have been issued and demonstrating in reasonable detail the basis for such certification. Except as otherwise provided herein, the Incremental Term LoansLoans shall have the interest rate, amortization schedule and maturity date as shall be set forth in the Incremental Term Loan Agreement. The Incremental Term Loans shall be secured by the Collateral, shall represent the obligations of the Borrower, shall be guaranteed by the Guarantors and shall be pari passu with the other Loans as to any Collateral and ranking of claims. Each of the Incremental Term Lenders hereby authorizes the Administrative Agent to revise Schedule 2.1 on the effective date of the Incremental Term Loan Agreement to reflect such new commitments without an amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Affinity Group Inc), Credit Agreement (Affinity Group Holding, Inc.)
Incremental Term Loans. (a) The Borrower shall have Company may by written notice to Administrative Agent at any time following the right from time to time during the term of this AgreementClosing Date, and subject to the terms and conditions set forth in this Section 2.17, elect to request in writing incremental the establishment of one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”), by an amount not in excess of $15,000,000 in the aggregate. After such notice, Company may retain a syndication agent (the “Syndication Agent”) be made under this Agreement by Incremental Term Lenders pursuant reasonably satisfactory to one or more Incremental Requisite Lenders, for the purposes of arranging and syndicating the New Term Loan AgreementsCommitments. Such notice to Company shall notify the Administrative Syndication Agent of the date (each, an “Increased Amount Date”) on which Company proposes that the New Term Loan Commitments shall set forth be effective, which shall be a date not less than 10 Business Days after the date on which such Incremental notice is delivered to Syndication Agent. Syndication Agent shall use its reasonable efforts to deliver to Company as soon as practicable a notice containing the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Term Loans are requested Loan Lender”) to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date whom Syndication Agent proposes any portion of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall Commitments be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent allocated and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery amounts of an Incremental Term Loan Agreementsuch allocations; provided, furtherthat Syndication Agent shall invite each Lender to participate in some portion of such New Term Loan Commitments, and that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
effective, as of such Increased Amount Date; provided, that (i) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of the making of the proposed Incremental after giving effect to such New Term Loans;
Loan Commitments, as applicable; (ii) all conditions precedent for a Borrowing the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Company, Syndication Agent, Administrative Agent and the New Term Loan Lenders, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 4.02 have been satisfied;
2.20(c); (iii) the Borrower all such New Term Loan Commitments and/or New Term Loans shall have provided Incremental been designated as “Third Lien Obligations” pursuant to and as defined in the Term Loan Cash Collateral as required pursuant Intercreditor Agreement; and (iv) Company shall deliver or cause to Section 6.10 hereof be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of such Series shall make a Loan to Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(c) Administrative Agent shall have received copies notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof, the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, subject to the assignments contemplated by this Section.
(d) The terms and provisions of the Collateral Documents New Term Loans of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Third Lien Term Loans. In any amendments thereto event the applicable New Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the Third Lien Term Loans, and the rate of interest applicable to the New Term Loans of each Series shall be determined by Company and the applicable New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Administrative Agent shall deem reasonably necessary, signed, interest rate applicable to the extent applicableNew Term Loans shall not be greater than the highest interest rate that may, by each under any circumstances, be payable with respect to Third Lien Term Loans plus 0.50% per annum unless the interest rate with respect to the Third Lien Term Loans is increased so as to equal the interest rate applicable to the New Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Credit Documents as may be necessary or appropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Syndication Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , to effect the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provision of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.24.
Appears in 2 contracts
Sources: Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.)
Incremental Term Loans. (a) The Borrower shall have and any one or more Lenders (including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrower, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms Administrative Agent, may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to in its sole discretion), that such Lenders shall make one or more additional term loan facilities available to the Borrower under this clause (b) of Section 2.1.1 (each an “Incremental Term Loan Facility” and conditions set forth in this Section 2.17collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to the Administrative Agent or Incremental Term Loan Commitment shall set be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the date on specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrower and the Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which shall not be less than three (3i) Business Days nor more than 60 days after the date aggregate principal amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed all Incremental Term Loan Agreement Commitments shall not exceed the Maximum Incremental Amount; (ii) the Stated Maturity Date of any Incremental Term Loan shall be on or after the Stated Maturity Date for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loans as an attachment theretoLoans; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiii) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed result after giving effect to any Incremental Term Loans;
Loan; (iiiv) the Loan Parties and their Subsidiaries shall be in compliance after giving effect to any Incremental Term Loan with all conditions precedent for a Borrowing covenants set forth in the Loan Documents, including the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4; (iiiv) compliance with clause (iv) (calculated after giving effect to any such Incremental Term Loans) shall be evidenced by a Compliance Certificate delivered to the Administrative Agent; (vi) the proceeds of any Incremental Term Loan shall be used solely for the purposes described in Section 4.10; (vii) to the extent Section 4.10 permits any proceeds of any Incremental Term Loan to be used to acquire any additional Domestic Real Property, each of the conditions set forth in Sections 5.2 and 5.3 shall be fulfilled to the satisfaction of the Administrative Agent; (viii) the weighted average life of any Incremental Term Loan shall be equal to or greater than the remaining weighted average life of the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan; (ix) to the extent that the applicable interest rate margin on any Incremental Term Loan exceeds by more than 0.25% the applicable interest rate margin for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan, the applicable interest rate margin for the Multi-Draw Term Loans shall be increased so that the applicable interest rate margin for the Multi-Draw Term Loans and for such Incremental Term Loan are equal; (x) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; (xi) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans; and (xii) the Borrower shall have provided Incremental Term Loan Cash Collateral delivered any modifications or additional Real Property Documents as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, requested in its sole discretion pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansRevolver Increase.
Appears in 2 contracts
Sources: Amendment Agreement (CatchMark Timber Trust, Inc.), Credit Agreement (CatchMark Timber Trust, Inc.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term LoansLoans may be made by any existing Lender (an “Existing TL Lender”) be made under this Agreement or by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which any Eligible Assignee (any such Eligible Assignee providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after at such time being called an “Additional TL Lender” and, together with the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for Existing TL Lenders providing such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, at such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such requesttime, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“TL Lenders”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such . Incremental Term Loans shall be mademade pursuant to an amendment, at the option of the Borrower, by restatement or amendment and restatement (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan Amendment”); provided that ) of this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each TL Lender and the Administrative Agent, in each case without the consent of any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an other Person. The Incremental Term Loan Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an hereby agrees to enter into such Incremental Term Loan Agreement; provided, further, that no Lender shall be required Amendments. The Lenders hereby irrevocably authorize the Administrative Agent to become an Incremental Term Lender and any Lender or financial institution approached to provide an enter into such Incremental Term Loan may elect or declineAmendments. The effectiveness of any Incremental Term Loan Amendment shall be subject to (x) the satisfaction of the conditions as the parties thereto shall agree, in its sole discretion, to provide provided that no such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Amendment shall execute and deliver modify or waive any condition to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no incurrence of Incremental Term Loans shall be provided under this except in accordance with Section 2.17 unless:
9.2 hereof and (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiy) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory documents consistent with those delivered on the Restatement Effective Date pursuant to Section 4.1(e) as to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions corporate power and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, authority of the Borrower shall have executed and delivered Incremental Term Notes in favor of to borrow hereunder after giving effect to such Incremental Term Lenders evidencing such Loan Amendment. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Term Loans. (a) The Borrower shall have may by written notice to the right from time Agent, up to time four (4) times during the term of this Agreement, and subject elect to the terms and conditions set forth in this Section 2.17, to request in writing incremental establish one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”) be to increase the aggregate amount of all Commitments made under this Agreement by Incremental Term Lenders pursuant to one or not more Incremental than $400,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the New Term Loan Agreements. Such notice to the Administrative Agent Commitments shall set forth be effective, which shall be a date not less than 5 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made the Agent, (which shall not be less than three (3B) Business Days nor more than 60 days after the date amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as Commitments, which must be at least $15,000,000, and (C) the identity of each Lender or other Person that is an attachment thereto; provided thatEligible Assignee (each, notwithstanding anything to the contrary contained herein or in any Incremental a “New Term Loan Agreement, Lender”) to whom such Incremental New Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent Loan Commitments shall be required (allocated and the amounts of such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)allocations; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that, both before and after giving effect to such request shall execute and deliver to the Administrative Agent an Incremental New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
Commitments (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i1) no Default or Event of Default shall exist at the time of the request on such Increase Amount Date before or at the time of after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of the proposed Incremental any New Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 have 5.2 shall be satisfied; (3) the Borrower and the Parent shall be in pro forma compliance with the covenants set forth in Section 9.1 as of the last day of the most recently ended fiscal quarter for which a Compliance Certificate has been satisfied;
delivered after giving effect to such New Term Loan Commitments; (iii4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall have provided Incremental deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. On any Increased Amount Date on which any New Term Loan Cash Collateral as required pursuant Commitments of any Series are effective, subject to Section 6.10 hereof the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Administrative New Term Loans made pursuant thereto. The Agent shall have received copies notify Lenders promptly upon receipt of the Collateral Documents or any amendments thereto Borrower’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments shall be identical to the existing Term Loans except that the Administrative Agent shall deem reasonably necessary, signed, upfront fees applicable to the extent applicableNew Term Loans shall be determined solely by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, by each without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Loan Documents as may be necessary or appropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor to effect the provision of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.9.
Appears in 2 contracts
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Incremental Term Loans. In addition to Borrowings of U.S. Dollar Revolving Loans, Australian Dollar Revolving Loans, Tranche A Term Loans and Tranche B Term Loans specified in Section 2.01(a), (ab), (c) The Borrower shall have the right and (d), respectively, at any time and from time to time during prior to the term Incremental Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Incremental Term Loans to the Borrower in U.S. Dollars. It is understood in each case that such offer may be made by any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (f), so long as the Administrative Agent shall have consented to such financial institution being a Lender hereunder (such consent shall not be unreasonably withheld). In the event that one or more of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be payable by the Borrower in connection therewith and the Applicable Rate and (in the case of Incremental Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and such Lenders shall execute and deliver a Incremental Term Loan Agreement and such Lenders shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Loan Commitments as specified in such Incremental Term Loan Agreement. The Incremental Term Loans to be made pursuant to any Incremental Term Loan Agreement in response to any such request by the Borrower shall be deemed to be a separate "Series" of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any request specified above (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall be $75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term Loans of all Series, together with the aggregate unutilized Incremental Term Commitments of all Series, shall not exceed $300,000,000 at any time, (iii) the Incremental Term Loan Commitments of any Series shall terminate on the earlier of the Incremental Term Loan Availability Date and the date 30 days after the date of the respective Incremental Term Loan Agreement for such Series and (iv) in no event shall the Incremental Term Loan Agreement for any Series of Incremental Term Loans provide for the final maturity of the Incremental Term Loans of such Series to be earlier than the Tranche B Term Loan Maturity Date, or for the weighted average life to maturity of the Incremental Term Loans of such Series to be less than the weighted average life to maturity of the Tranche B Term Loans as of the date of such Incremental Term Loan Agreement (such determination of average life to be made by the Administrative Agent). Following agreement by the Borrower and one or more of the Lenders as provided above, subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender of any Series agrees to the Administrative Agent shall set forth the date on which such make Incremental Term Loans are requested of such Series to be made (which shall not be less than three (3) Business Days nor more than 60 the Borrower from time to time during the period from and including the date of the respective Incremental Term Loan Agreement for such Series to and including the earlier of the Incremental Term Loan Availability Date and the date 30 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on in an aggregate principal amount up to but not exceeding the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent amount of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to Commitment of such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor Series of such Incremental Term Lenders evidencing such Incremental Term LoansLoan Lender.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan Agreements. Such notice Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided that on a Pro Forma Basis after giving effect to the Administrative Agent borrowing of the Incremental Term Loans and the use of proceeds thereof, the Borrower is in compliance with the applicable Financial Covenants, as of the latest Measurement Period (or with respect to Section 9.2, as of such date); and provided, further that:
(i) no Event of Default shall set forth exist after giving effect to such Incremental Term Loans on the date on which Increased Amount Date (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default at the time of the relevant acquisition agreement was entered into shall be the standard);
(ii) such Incremental Term Loans shall mature no earlier than the Term Loans under any then outstanding Facility (and if such Incremental Term Loans are requested secured on a junior lien basis to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion any of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan AgreementFacilities, such Incremental Term Loans shall mature no earlier than 180 days after the Latest Maturity Date), and such Incremental Term Loans shall not have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility; provided that any Incremental Term Loans incurred during the Designated Period that are secured on a pari passu basis with the Loans may mature earlier than the Term Loans under any then outstanding Facility and may have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility so long as such Incremental Term Loans shall not mature prior to April 17, 2025;
(iii) solely with respect to any Incremental Term Loans that are secured on a pari passu basis and are pari passu in right of payment with the Loans and are incurred prior to the date that is 24 months after the Closing Date, if the Effective Yield on any Incremental Term Loans as of the date of determination and prior to giving effect to this clause (iii) exceeds the Effective Yield on the Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the Effective Yield on the Tranche B Term Loans is 50 basis points less than the Effective Yield on such Incremental Term Loans;
(iv) the terms, provisions and documentation of the Incremental Term Loans, except as otherwise set forth herein, shall be as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that to the extent the terms of such Incremental Term Loans are not consistent with the Facilities (other than provisions relating to original issue discount, fees, premiums, and optional prepayment or redemption terms, interest rates (subject to clause (iii) above) and subject to clause (ii) above, maturity and amortization which shall be as agreed between the applicable Borrower and the Lenders providing such Incremental Term Loans), the terms of such Incremental Term Loans shall be not be materially more favorable, taken as a whole, to such lenders providing such Incremental Term Loans than the terms of the Tranche B Term Loans, unless the existing Lenders receive the benefit of such favorable terms, or such terms are reasonably satisfactory to the Administrative Agent (provided that the terms applicable after the Latest Maturity DateDate are reasonably acceptable to the Administrative Agent);
(1) if secured on a pari passu basis with the other Obligations, all collateral therefor shall be secured by the Security Documents and the Loan Parties and the Administrative Agent shall have entered into such amendments to the Security Documents (including modifications to the Mortgages and date down endorsements to the mortgagee’s title insurance policies issued to Administrative Agent with respect to the Mortgages) as may be reasonably requested by the Administrative Agent (which shall not require any mandatory prepayments thereof and shall not amortize. In consent from any Lender) in connection with any the Incremental Term Loans and the Borrower shall have delivered such requestother documents, the consent certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and (2) if secured on a junior lien basis with the other Obligations, all collateral therefor shall be required secured by collateral documentation that is substantially similar to the Security Documents (and in any event no more restrictive in any material respect), the Borrower shall have delivered such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and the agent for such Incremental Term Loans shall have executed the Junior Lien Intercreditor Agreement if reasonably requested by the Administrative Agent; and
(vi) the Incremental Term Loans shall rank pari passu in right of payment and pari passu or junior in right of security with the Term Loans.
(b) The Borrower may approach any Lender or any other Person that would be a permitted Assignee pursuant to Section 12.6 (including consent, if applicable, from the Administrative Agent, such consent not to be unreasonably withheld, conditioned withheld or delayed), but no consent ) to provide all or a portion of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such the Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Increased Amount Date shall be designated an incremental series (an “Incremental Series”) of Incremental Term Loans for all purposes of this Agreement and shall be deemed “Term Loans” for all purposes of this Agreement; provided that any Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, be designated as an increase in any previously established Incremental Series of Incremental Term Loans made to the Borrower.
(c) The Borrower and each Incremental Term Lender that has agreed Loans shall be established pursuant to provide an Incremental Term Loan pursuant to such request shall execute and deliver to Amendment executed by the Borrower, the Administrative Agent an and the Incremental Term Lenders providing such Incremental Term Loans which shall be consistent with the provisions set forth in paragraph (a) above (which shall not require the consent of any other Lender). Each Incremental Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto and thereto. In connection with the Incremental Amendment, amendments shall be made to this Agreement without the consent of any Lender or other Person, to reflect such Incremental Term Loans as may be necessary or appropriate in the reasonable opinion of the Borrower and such other documentation as the Administrative Agent shall reasonably specify to effect the provisions of this Section 2.4, including any amendments necessary to provide for the requested that such Incremental Term LoansLoans are fungible with the existing Tranche B Term Loans for U.S. income taxes.
(d) This Section 2.4 shall supersede any provisions in Section 12.1 to the contrary.
(e) Notwithstanding anything to the foregoingcontrary, no Incremental Term Loan Agreement shall become effective and no (x) the aggregate principal amount of Incremental Term Loans shall be provided under incurred pursuant to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have 2.4 plus increased Revolving Credit Commitments provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or 3.3 plus any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Indebtedness incurred pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partySection 9.3(c), in each case case, during the Designated Period that are secured on a pari passu basis with the other Obligations shall not exceed $50,000,000 in form the aggregate and substance reasonably satisfactory to the Administrative Agent;
(ivy) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any proceeds of all Incremental Term Lender making an Loans incurred pursuant to Incremental Term Loan, Loan Commitments during the Borrower Designated Period shall have executed only be used to fund the purchase of limited partnership units under the Partnership Parks Agreements and delivered Incremental Term Notes in favor to pay fees and expenses associated with the incurrence of such Incremental Term Lenders evidencing such Incremental Term LoansIndebtedness.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to Loan Commitments from one or more Incremental Term Lenders in an amount not to exceed the Incremental Term Loan AgreementsAmount. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term 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 Term Loan Amount or as otherwise agreed by the Incremental Term Lenders providing such Incremental Term Loan Commitments) and (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three ten (310) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agentnotice)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans The Borrower shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an first seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed which shall be entitled to agree or decline to participate in its sole discretion) and, to the extent the Incremental Term Loan Commitments of the existing Lenders are insufficient, the Borrower may seek Incremental Term Loan Commitments from additional banks, financial institutions and other institutional lenders approved by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole reasonable discretion, to provide such Incremental Term Loan.
(c) . The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective Commitment of each Incremental Term Lender. The terms and no provisions of the Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time identical to those of the request or at the time of the making of the proposed Incremental Initial Term Loans;
(ii) all conditions precedent for a Borrowing Loans except as otherwise set forth in Section 4.02 have been satisfied;
(iii) herein. The Administrative Agent shall promptly notify each Lender as to the Borrower shall have provided effectiveness of each Incremental Term Loan Cash Collateral as required pursuant Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to Section 6.10 hereof the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent shall have received copies of and the Collateral Documents or any Borrower may revise this Agreement to evidence such amendments thereto that without the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case consent of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLender.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have At any time, the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $350,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrowers may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Acquisition not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or CHAR2\1695161v9 assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(C) the Administrative Agent and the Lenders shall have received from the Borrowers a Pro Forma Compliance Certificate demonstrating that the Credit Parties will be in compliance on a pro forma basis with the financial covenants set forth in Section 6.1 after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loans pursuant thereto and (3) any Consolidated Company Investment consummated in connection therewith; provided that if such Incremental Term Loans are incurred in connection with a Consolidated Company Investment or an irrevocable redemption or repayment of Indebtedness, compliance with the financial covenants set forth in Section 6.1 may be determined, at the option of the Parent, at the time of signing the request applicable acquisition agreement or at the time date of the making irrevocable notice of the proposed redemption or repayment, as applicable (in which case, such Incremental Term Loans;
Loans will be deemed outstanding for purposes of calculating the maximum amount of Indebtedness that can be incurred under any leverage-based test hereunder); provided further, that if the Parent has made such election, in connection with the calculation of any financial ratio (ii) all conditions precedent for a Borrowing other than the financial covenants set forth in Section 4.02 6.1) on or following such date and prior to the earlier of the date on which such Consolidated Company Investment is consummated or the definitive agreement for such Consolidated Company Investment is terminated or such redemption or repayment is made, as applicable, any such ratio shall be calculated on a Pro Forma Basis assuming such Consolidated Company Investment, redemption or repayment and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been satisfiedconsummated, except to the extent such calculation would result in a lower leverage ratio than would apply if such calculation was made without giving pro forma effect to such Consolidated Company Investment, redemption, repayment, other pro forma events and Indebtedness;
(iiiD) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrowers and shall be guaranteed with the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each other Extensions of the parties thereto Credit on a pari passu basis;
(or, F) in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Loan (the terms of which shall be set forth in the relevant Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Joinder Agreement):
Appears in 1 contract
Sources: Amendment No. 1 (WestRock Co)
Incremental Term Loans. (a) The Borrower shall have Pursuant to Section 2.9 of the right from time to time during the term of this Credit Agreement, and subject solely to the terms and satisfaction of the conditions precedent set forth in this such Section 2.172.9 and Section 5 hereof and in reliance on the representations and warranties set forth herein, to request in writing incremental term loans on and as of the First Incremental Amendment Effective Date (the “Incremental Term Loans”as defined herein):
(i) be made under this Agreement by Incremental Term Lenders pursuant to one or more each Incremental Term Loan Agreements. Such notice Lender party hereto severally agrees to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatmake, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity First Incremental Amendment Effective Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing a) an Incremental Term Loan pursuant A in Dollars to ▇▇▇▇▇-▇▇▇▇▇▇▇▇ in an amount equal to the commitment amount (if any) set forth next to such request) is required to be obtained.
Incremental Term Loan Lender’s name in Exhibit A hereto under the caption “Amount of 2015 Incremental Term Loan A Commitments” and (b) Any an Incremental Term Loan B in Dollars to ▇▇▇▇▇-▇▇▇▇▇▇▇▇ in an amount equal to the commitment amount (if any) set forth next to such Incremental Term Loan Lender’s name in Exhibit A hereto under the caption “Amount of 2015 Incremental Term Loan B Commitments”;
(ii) the 2015 Incremental Term Loan A Commitments and the 2015 Incremental Term Loan B Commitments of the Incremental Term Loan Lenders shall automatically terminate upon the funding of the Incremental Term Loans on the First Incremental Amendment Effective Date;
(iii) immediately upon the incurrence of the Incremental Term Loans on the First Incremental Amendment Effective Date, (i) the Incremental Term Loans A shall be added to and constitute a part of the Term Loan A Facility existing under the Credit Agreement prior to giving effect to this First Incremental Amendment, (ii) the Incremental Term Loans B shall constitute Additional Term B Loans and shall constitute a Term Loan B Facility separate from the Term Loan A Facility and (iii) the Incremental Term Loans B shall be secured by the same Collateral that secures, and be guaranteed by the same Guarantors that guarantee, the Term Loan A Facility in each case on identical terms; and
(iv) the proceeds of the Incremental Term Loans shall be made, at used by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ solely to finance the option purchase price payable in respect of the BorrowerAcquisition, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in pay the fees and expenses related to the Acquisition, this Section 2.17(b) being called an “First Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeAmendment and related transactions, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery incurrence of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrower may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent incur at any time and from time to time after the Closing Date one or more tranches of additional terms loans ("Incremental Term Loans") from one or more existing Lenders and/or other Persons that are Eligible Assignees (any such other Person being an "Additional Lender") that, in each case, agrees to make such Loans to the Borrower; provided that (i) no Default shall have occurred and be continuing at the time such Incremental Term Loan is incurred or after giving effect thereto and (ii) after giving effect to the incurrence of such Incremental Term Loan and the receipt and application of the proceeds therefrom, the Borrower shall be in compliance with Section 7.10 (as determined on a pro forma basis). Each such notice shall set forth the date on in which the Borrower proposed that the Incremental Term Loans shall become effective, the requested amount and proposed terms of the relevant Incremental Term Loans.
(b) Each tranche of Incremental Term Loans:
(i) shall be in an aggregate principal amount of not less than $25,000,000;
(ii) shall rank pari passu in all respects to the Term Loans and Revolving Loans;
(iii) shall not have a final maturity earlier than the Term Loan Maturity Date (but may, subject to clause (iv) below, have amortization prior to such date);
(iv) shall have a weighted average life of not less than that of the Tranche B Term Loans; and
(v) except as set forth above, shall be treated substantially the same as, and in any event no more favorably than, the Term Loans (in each case, including with respect to voluntary prepayments and financial covenants); provided that (A) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan Maturity Date and (B) the Incremental Term Loans may be priced differently than the other Term Loans.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower's notice of its request to incur Incremental Term Loans. Each existing Lender shall then be afforded the opportunity, but shall not be required, to provide a ratable share (including a share of any Incremental Term Loans not subscribed to by other existing Lenders) of such Incremental Term Loans. In the event that the existing Lenders provide commitments in an aggregate amount less than the total amount of Incremental Term Loans are requested by the Borrower, the Borrower may arrange for one or more Additional Lenders to be made extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an "Incremental Term Loan Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders), if any, and the Administrative Agent. Such amendment shall set forth any terms and conditions of the Incremental Term Loans not covered by this Agreement as agreed by the Borrower, such Lenders and the Administrative Agent, with such amendment to be less than three in form and substance reasonably acceptable to Administrative Agent and consistent with the terms of this Section 2.03 and of the other provisions of this Agreement. The effectiveness of any Incremental Term Loan Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (3) Business Days nor more than 60 days after it being understood that all references to "the date of such notice (which time periods may Credit Extension" in Section 4.02 shall be modified or waived at deemed to refer to the discretion effective date of the Administrative Agent)) and include the applicable completed such Incremental Term Loan Agreement for Amendment) and such Incremental Term Loans other conditions as an attachment thereto; provided thatthe parties thereto shall agree. Notwithstanding the foregoing, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an making Incremental Term Loan pursuant to such requestLoans) is required to be obtained.
(b) Any such permit the Incremental Term Loans shall be made, at the option of the Borrower, contemplated by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed the aforesaid amendment to by effectuate the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Fisher Scientific International Inc)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan Agreements. Such notice Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided that on a Pro Forma Basis after giving effect to the Administrative Agent shall borrowing of the Incremental Term Loans and the use of proceeds thereof, the Borrower is in compliance with the applicable Financial Covenants,covenant set forth in Section 9.1 as of the date latest Measurement Period (or with respect to Section 9.2, as of such date); and provided, further that:
(i) no Event of Default shall exist after giving effect to such Incremental Term Loans on which the Increased Amount Date (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default at the time of the relevant acquisition agreement was entered into shall be the standard);
(ii) such Incremental Term Loans shall mature no earlier than the Term Loans under any then outstanding Facility (and if such Incremental Term Loans are requested secured on a junior lien basis to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion any of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan AgreementFacilities, such Incremental Term Loans shall mature no earlier than 180 days after the Latest Maturity Date), and such Incremental Term Loans shall not have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility; provided that any Incremental Term Loans incurred during the Designated Period that are secured on a pari passu basis with the Loans may mature earlier than the Term Loans under any then outstanding Facility and may have a shorter weighted average life to maturity than the remaining weighted average life to maturity (without giving effect to reductions of amortization for periods where amortization has been reduced as a result of the prepayment of the Term Loans) of the Term Loans under any then outstanding Facility so long as such Incremental Term Loans shall not mature prior to April 17, 2025;in the form of customary bridge loans (as determined by the Borrower in good faith) may have a maturity date of one year or less so long as any Indebtedness that is to be exchanged for or otherwise to replace such bridge loans, or into which such bridge loans are to be converted, satisfies the requirements of this clause (ii);
(iii) solely with respect to any Incremental Term Loans that are secured on a pari passu basis and are pari passu in right of payment with the Loans and are incurred prior to the date that is 24 months after the Closing Date, if the Effective Yield on any Incremental Term Loans as of the date of determination and prior to giving effect to this clause (iii) exceeds the Effective Yield on the Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the Effective Yield on the Tranche B Term Loans is 50 basis points less than the Effective Yield on such Incremental Term Loans;
(iv) the terms, provisions and documentation of the Incremental Term Loans, except as otherwise set forth herein, shall be as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that to the extent the terms of such Incremental Term Loans are not consistent with the Facilities (other than provisions relating to original issue discount, fees, premiums, and optional prepayment or redemption terms, interest rates (subject to clause (iii) above) and subject to clause (ii) above, maturity and amortization which shall be as agreed between the applicable Borrower and the Lenders providing such Incremental Term Loans), the terms of such Incremental Term Loans shall be not be materially more favorable, taken as a whole, to such lenders providing such Incremental Term Loans than the terms of the Tranche B Term Loans, unless the existing Lenders receive the benefit of such favorable terms, or such terms are reasonably satisfactory to the Administrative Agent (provided that the terms applicable after the Latest Maturity DateDate are reasonably acceptable to the Administrative Agent);
(1) if secured on a pari passu basis with the other Obligations, all collateral therefor shall be secured by the Security Documents and the Loan Parties and the Administrative Agent shall have entered into such amendments to the Security Documents (including modifications to the Mortgages and date down endorsements to the mortgagee’s title insurance policies issued to Administrative Agent with respect to the Mortgages) as may be reasonably requested by the Administrative Agent (which shall not require any mandatory prepayments thereof and shall not amortize. In consent from any Lender) in connection with any the Incremental Term Loans and the Borrower shall have delivered such requestother documents, the consent certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and (2) if secured on a junior lien basis with the other Obligations, all collateral therefor shall be required secured by collateral documentation that is substantially similar to the Security Documents (and in any event no more restrictive in any material respect), the Borrower shall have delivered such other documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Administrative Agent and the agent for such Incremental Term Loans shall have executed the Junior Lien Intercreditor Agreement if reasonably requested by the Administrative Agent; and
(vi) the Incremental Term Loans shall rank pari passu in right of payment and pari passu or junior in right of security with the Term Loans.
(b) The Borrower may approach any Lender or any other Person that would be a permitted Assignee pursuant to Section 12.6 (including consent, if applicable, from the Administrative Agent, such consent not to be unreasonably withheld, conditioned withheld or delayed), but no consent ) to provide all or a portion of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such the Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an all or a portion of the Incremental Term Loan Loans may elect or decline, in its sole discretion, to provide such an Incremental Term Loan. Any Incremental Term Loans made on any Increased Amount Date shall be designated an incremental series (an “Incremental Series”) of Incremental Term Loans for all purposes of this Agreement and shall be deemed “Term Loans” for all purposes of this Agreement; provided that any Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, be designated as an increase in any previously established Incremental Series of Incremental Term Loans made to the Borrower.
(c) The Borrower and each Incremental Term Lender that has agreed Loans shall be established pursuant to provide an Incremental Term Loan pursuant to such request shall execute and deliver to Amendment executed by the Borrower, the Administrative Agent an and the Incremental Term Lenders providing such Incremental Term Loans which shall be consistent with the provisions set forth in paragraph (a) above (which shall not require the consent of any other Lender). Each Incremental Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto and thereto. In connection with the Incremental Amendment, amendments shall be made to this Agreement without the consent of any Lender or other Person, to reflect such Incremental Term Loans as may be necessary or appropriate in the reasonable opinion of the Borrower and such other documentation as the Administrative Agent shall reasonably specify to effect the provisions of this Section 2.4, including any amendments necessary to provide for the requested that such Incremental Term LoansLoans are fungible with the existing Tranche B Term Loans for U.S. income taxes.
(d) This Section 2.4 shall supersede any provisions in Section 12.1 to the contrary.
(e) Notwithstanding anything to the foregoingcontrary, no Incremental Term Loan Agreement shall become effective and no (x) the aggregate principal amount of Incremental Term Loans shall be provided under incurred pursuant to this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have 2.4 plus increased Revolving Credit Commitments provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or 3.3 plus any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Indebtedness incurred pursuant to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such partySection 9.3(c), in each case case, during the Designated Period that are secured on a pari passu basis with the other Obligations shall not exceed $50,000,000 in form the aggregate and substance reasonably satisfactory to the Administrative Agent;
(ivy) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any proceeds of all Incremental Term Lender making an Loans incurred pursuant to Incremental Term Loan, Loan Commitments during the Borrower Designated Period shall have executed only be used to fund the purchase of limited partnership units under the Partnership Parks Agreements and delivered Incremental Term Notes in favor to pay fees and expenses associated with the incurrence of such Incremental Term Lenders evidencing such Incremental Term LoansIndebtedness.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may by written notice to the right from time Agent, up to time four (4) times during the term of this Agreement, and subject elect to the terms and conditions set forth in this Section 2.17, to request in writing incremental establish one or more new term loans loan commitments (the “Incremental New Term LoansLoan Commitments”), in an aggregate amount equal to $200,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental on which the New Term Loan Agreements. Such notice to the Administrative Agent Commitments shall set forth be effective, which shall be a date not less than 5 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made the Agent, (which shall not be less than three (3B) Business Days nor more than 60 days after the date amount of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental New Term Loan Agreement for such Incremental Term Loans as Commitments, which must be at least $25,000,000, and (C) the identity of each Lender or other Person that is an attachment thereto; provided thatEligible Assignee (each, notwithstanding anything to the contrary contained herein or in any Incremental a “New Term Loan Agreement, Lender”) to whom such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental New Term Loan pursuant to Commitments be allocated and the amounts of such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”)allocations; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Term Loan pursuant Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that, both before and after giving effect to such request shall execute and deliver to the Administrative Agent an Incremental New Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
Commitments (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i1) no Default or Event of Default shall exist at the time of the request on such Increase Amount Date before or at the time of after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of the proposed Incremental any New Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 have 5.2 shall be satisfied; (3) the Borrower and the Parent shall be in pro forma compliance with the covenants set forth in Section 9.1 as of the last day of the most recently ended fiscal quarter for which a Compliance Certificate has been satisfied;
delivered after giving effect to such New Term Loan Commitments; (iii4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall have provided Incremental deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction. On any Increased Amount Date on which any New Term Loan Cash Collateral as required pursuant Commitments of any Series are effective, subject to Section 6.10 hereof the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Administrative New Term Loans made pursuant thereto. The Agent shall have received copies notify Lenders promptly upon receipt of the Collateral Documents or any amendments thereto that Borrower's notice of each Increased Amount Date and in respect thereof the Administrative Agent New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments shall deem reasonably necessary, signed, be identical to the extent applicableexisting Term Loans. In any event, the upfront fees applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the parties thereto (orother Loan Documents as may be necessary or appropriate, in the case opinion of any party as the Agent to which an executed counterpart shall not have been received, receipt by effect the Administrative Agent provision of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.9.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Incremental Term Loans. (a) The A. Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Administrative Agent. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term 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 Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 15 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Term Loans (“Other Term Loans”).
B. Borrower will first seek Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent Commitments from existing Lenders (each of the Administrative Agent which shall be required (such consent not entitled to be unreasonably withheld, conditioned agree or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant decline to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and, to provide such if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) The Loan Lenders in connection therewith. Borrower and each Incremental Term Loan Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Loan Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein. Without the prior written consent of the Requisite Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date for all existing Term Loans, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of all existing Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the LIBOR Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings, Borrower or any Subsidiary for doing so (excluding arrangement, structuring and underwriting fees; the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the Applicable Margin then in effect for LIBOR Rate Term 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 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby and the Administrative Agent and Borrower may revise this Agreement to evidence such amendments.
(d) C. Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
subsection 2.11 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower subsection 4.3B shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies an Officer’s Certificate of the Collateral Documents or any amendments thereto Borrower to that the Administrative Agent shall deem reasonably necessaryeffect dated such date, signed, to the extent applicable, by each of the parties thereto (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation consistent with those delivered on the Closing Date under subsection 4.1, and (iii) after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom, Borrower’s Consolidated Total Debt Ratio calculated on a Pro Forma Basis as it shall reasonably requestof the last day of the last Fiscal Quarter for which financial statements are required to be delivered hereunder would not exceed the lesser of: (x) 4:00:1:00, and (y) the maximum Consolidated Total Debt Ratio then applicable pursuant to subsection 7.6B.
D. Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making an Loans (other than Other Term Loans), when originally made, are included in each outstanding Term Loan on a pro rata basis. This may be accomplished by requiring each outstanding LIBOR Rate Term Loans to be converted into a Base Rate Term Loan on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding LIBOR Rate Term Loan on a pro rata basis. Any conversion of LIBOR Term Loans to Base Rate Term Loans required by the preceding sentence shall be subject to subsection 2.6D. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBOR Rate Term Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under subsection 2.4A(i) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall 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 Loan Lenders were entitled before such recalculation.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower As an alternative or in addition to Section 2.7 above, subject to the conditions set forth in paragraphs (a) through (f) hereof, at any time prior to the Revolving Credit Maturity Date, the Borrower, shall have the right from time to time request, upon not less than thirty (30) days’ prior written notice (an “Incremental Term Loan Notification”) to the Administrative Agent, Incremental Term Loans in an aggregate principal amount as may be specified by the Borrower. Such Incremental Term Loan Notification shall specify the applicable Incremental Term Loan Effective Date, and on such date, the Borrower shall deliver a Notice of Borrowing with respect to such Incremental Term Loan. The Borrower shall not deliver more than two (2) Incremental Term Loan Notifications during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any Each Incremental Term Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds that qualify as Eligible Assignees (each such other bank, financial institution or investment fund, a “New Incremental Term Loan Lender” and, collectively with the existing Lenders providing such Incremental Term Loans shall be madeLoan, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan Lenders”); provided that any such non-no existing Lender or financial institution (A) must be an Eligible Assignee, (B) must shall have any obligation to provide any portion of such Incremental Term Loan and the failure by any existing Lender to respond to a request for an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required deemed to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide be a refusal of such Incremental Term Loanrequest by such existing Lender.
(c) The Borrower following terms and conditions shall apply to each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unlessLoan:
(i) no Default or Event of Default such Incremental Term Loan shall exist at the time constitute Obligations of the request or at Borrower and shall be secured and guaranteed with the time other Extensions of the making of the proposed Incremental Term LoansCredit on a pari passu basis;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent and the Lenders shall have received copies of from the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower an Officer’s Compliance Certificate, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, as of the applicable Incremental Term Loan Effective Date and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith, the Borrower and its Restricted Subsidiaries are in pro forma compliance with the financial covenants set forth in Article IX;
(iii) no Default or Event of Default shall have occurred and be continuing as of the applicable Incremental Term Loan Effective Date or after giving effect to the making of any such Incremental Term Loan;
(iv) the representations and warranties made by each Credit Party in this Agreement and the other Loan Documents shall be true and correct on and as of the applicable Incremental Term Loan Effective Date with the same effect as if made on and as of such date (other than those representations and warranties that by their terms speak as of a particular date, which representations and warranties shall be true and correct as of such particular date);
(v) the Administrative Agent shall have received customary legal opinionsa resolution duly adopted by the board of directors of each Credit Party authorizing such Incremental Term Loan;
(vi) each Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent and the Incremental Term Loan Lenders making such Incremental Term Loan, resolutions and closing certificates and other documentation as it but will not in any event have a maturity date earlier than the Revolving Credit Maturity Date;
(vii) in no event shall reasonably requestthe aggregate principal amount of all Incremental Term Loans made pursuant to this Section 2.8 (including the requested Incremental Term Loan) plus the aggregate amount of all increases in the Revolving Credit Commitment pursuant to Section 2.7, in each case after the Closing Date, exceed $350,000,000;
(viii) the amount of such Incremental Term Loan obtained hereunder shall not be less than a minimum principal amount of $15,000,000, or, if less, the remaining amount permitted pursuant to clause (vii) above;
(ix) the Borrower and each Incremental Term Loan Lender shall execute and deliver an Incremental Term Loan Agreement to the Administrative Agent, for its acceptance and recording in the Register, which shall be acknowledged by the Administrative Agent and each Subsidiary Guarantor and shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(vx) the Administrative Agent shall have received any documents or information in connection with such Incremental Term Loan as it may request in its reasonable discretion.
(d) Notwithstanding the provisions of Section 13.2 to the extent requested by contrary, the Administrative Agent is hereby authorized to execute and deliver amendment documentation evidencing such amendments (or any other amendments necessary to effectuate the Incremental Term Loan on the terms set forth above) on behalf of the Lenders; provided that such amendment shall not modify this Agreement or any other Loan Document in any manner materially adverse to any Lender making without the consent of such Lenders adversely affected thereby in accordance with Section 13.2.
(e) Upon the execution, delivery, acceptance and recording of the applicable Incremental Term Loan Agreement, from and after the applicable Incremental Term Loan Effective Date, each Incremental Term Loan Lender shall have an Incremental Term Loan, Loan Commitment as set forth in the Register and all the rights and obligations of a Lender with such an Incremental Term Loan Commitment hereunder. The applicable Incremental Term Loan Lenders shall make the Incremental Term Loan to the Borrower shall have executed and delivered on the applicable Incremental Term Notes Loan Effective Date in favor an amount equal to the Incremental Term Loan Commitment of each Incremental Term Loan Lender with respect to such Incremental Term Lenders evidencing such Loan as agreed upon pursuant to subsection (b) above.
(f) The Administrative Agent shall maintain a copy of each Incremental Term LoansLoan Agreement delivered to it in accordance with Section 13.10(c).
Appears in 1 contract
Sources: Credit Agreement (CoreCivic, Inc.)
Incremental Term Loans. (ai) The shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower shall have and the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Lenders providing such Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Loan, provided that no Incremental Term Loan Agreements. Such notice shall mature earlier than the Term Loan Maturity Date and each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the Administrative Agent shall then remaining Weighted Average Life to Maturity of the Term Loans; (iii) except as set forth above, shall be treated substantially the date on which same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments); (iv) shall bear a rate of interest, OID (as defined below) and initial fees as agreed by the Borrower and the Lenders providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after Loan, provided that if the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in initial yield on any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to as reasonably determined by the Administrative Agent and the Borrower and to be equal to the sum of (Cx) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide the margin above the LIBO Rate on such Incremental Term Loan.
Loans, (cy) The Borrower and each if such Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver 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 but excluding any arrangement fees not paid to the Administrative Agent an Incremental Term Loan Agreement and Lenders thereof generally (the amount of such other documentation discount or fee, expressed as a percentage of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
, being referred to herein as “OID”), the amount of such OID (dbased on an assumed four year weighted average life) Notwithstanding the foregoing, no and (z) any minimum LIBO rate applicable to such Incremental Term Loan Agreement Loans, the “Incremental Yield”) exceeds the initial yield on the Term Loans by more than 50 basis points (taking into account the same factors in making the determination of the yield on the Incremental Term Loans and assuming a weighted average life of four years; the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate then in effect for Term Loans shall become automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans; and no (v) except as provided in clauses (ii) and (iv) above, the terms and conditions applicable to Incremental Term Loans shall not be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at materially more restrictive on the time Borrower than those of the request or at Term Loans. Subject to the time limitations in this clause (b) and any applicable limitations in Section 6.10, Incremental Term Loans may be issued in exchange for other Indebtedness of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansits Restricted Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Solutia Inc)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this AgreementAt any time, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Rayonier or ROC may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments to make incremental term loan advances (each such advance, an “Incremental Term Loan Advance”) under one or more additional incremental term loan facilities to be included in this Agreement (each such facility, an “Incremental Term Loan Facility”), or commitments for additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility (such commitments with respect to a new or existing Incremental Term Loan Facility, each individually, an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”). The aggregate amount of the Incremental Term Loan Commitments made with respect to each new Incremental Term Loan Facility or for any additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility shall set forth be, in each case, at least $50,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which Rayonier or ROC proposes that any Incremental Term Loan Commitment(s) shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed . Rayonier or ROC may invite one or more Lenders or new lenders that are Eligible Assignees to provide an Incremental Term Loan Agreement Commitment (any such Person, an “Incremental Term Loan Lender”) for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein Loan Facility. Any Lender or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned Lender offered or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment for all or a portion of any Incremental Term Loan Facility may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(i) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of the proposed any Incremental Term Loans;Loan Advances pursuant thereto; CHAR2\1701593v10
(ii) the Administrative Agent and the Lenders shall have received a certificate of each Borrower, dated as of such date and signed by the chief executive officer, chief financial officer or a senior vice president of such Borrower, (i) certifying and attaching all conditions precedent for necessary resolutions, consents and/or approvals of such Borrower approving or consenting to such new Incremental Term Loan Facility or the making of additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility, as the case may be, and (ii) certifying that, before and after giving effect to such new Incremental Term Loan Facility or making of additional Incremental Term Loan Advances, as the case may be, (A) the representations and warranties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Increased Amount Date (except to the extent applicable 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 and except to the extent such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct as of such date) (except that, in connection with any acquisition not prohibited hereunder, the Incremental Term Loan Lenders may agree that certain representations and warranties need not be true and correct on any date there is a Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility and that, in such case, the only representations and warranties the accuracy of which will be a condition to Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility will be those set forth in Sections 4.01(a), (b), (c), (d), (j), (p) and (r) (the “Specified Representations”) with respect to each Borrower (after giving effect to such acquisition) and such of the representation and warranties made by or on behalf of the company being acquired (or selling assets) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that any Borrower or Subsidiary of a Borrower that a party to such acquisition agreement has the right to terminate its obligations, or decline to consummate the acquisition, under such acquisition agreement as a result of a breach of such representations and warranties), (B) no Default or Event of Default (other than as a result of any Specified Representation having been incorrect in any material respect when made) exists and (C) Rayonier shall be in compliance with the covenants set forth in Section 4.02 5.04 (calculated on a pro forma basis, as of Increased Amount Date but based upon the most recently ended Fiscal Quarter for which financial statements have been satisfiedor are required to have been delivered pursuant to Section 5.01(k));
(iii) the Borrower shall have provided proceeds of any Incremental Term Loan Cash Collateral as required pursuant Advances shall be used solely to Section 6.10 hereof finance timberland acquisitions and/or to refinance existing Debt, and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form pay related fees and substance reasonably satisfactory to the Administrative Agentexpenses;
(iv) each Incremental Term Loan Commitment (and the Administrative Agent Incremental Term Loan Advances made thereunder) shall constitute obligations of Rayonier and/or ROC, as applicable, and shall be guaranteed with all Term Loan Advances on a pari passu basis; CHAR2\1701593v10
(v) after giving effect to any such Incremental Term Loan Advances (including, for purposes of such calculation, the aggregate amount of all Accordion Increases obtained on or prior to such date, assuming that such aggregate Accordion Increase has been fully drawn) on a pro forma basis, Rayonier shall have received customary legal opinions, resolutions a Leverage Ratio no greater than 50%;
(vi) in the case of each Incremental Term Loan Facility (the terms of which shall be set forth in the relevant incremental term loan agreement (the “Incremental Term Loan Amendment”):
(A) the Incremental Term Loan Advances made under such Incremental Term Loan Facility will mature and closing certificates and other documentation as it shall amortize in a manner reasonably request, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent, the Incremental Term Loan Lenders making such Incremental Term Loan Advances and the applicable Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining period until the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective or a maturity date earlier than the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective;
(B) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan Advances shall be determined by the Administrative Agent, the applicable Incremental Term Loan Lenders and the applicable Borrowers on the applicable Increased Amount Date;
(C) all other terms and conditions applicable to any Incremental Term Loan shall be consistent with the terms and conditions applicable to the existing Term Loan Facility; and
(vD) such Incremental Term Loan Advances shall be made available only to Rayonier and/or ROC;
(vii) [reserved];
(viii) such Incremental Term Loan Commitments shall be effected pursuant to an Incremental Term Loan Amendment executed and delivered by the applicable Borrower(s), the Administrative Agent and the applicable Incremental Term Loan Lenders (which Incremental Term Loan Amendment may, without the consent of any other Lenders or Borrower, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.25(b));
(ix) the Incremental Term Loan Lenders shall be included in any determination of the Required Lenders, and, except as otherwise provided in Section CHAR2\1701593v10
8.01 for certain instances, the Incremental Term Loan Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(x) the applicable Borrower(s) shall pay to the extent requested Administrative Agent such fees as may be agreed upon, based on current market conditions, to be retained by the Administrative Agent or distributed to Incremental Term Loan Lenders. On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Term Loan Lender making with an Incremental Term Loan, the Borrower Loan Commitment shall have executed and delivered make an Incremental Term Notes Loan Advance to the applicable Borrower in favor of an amount equal to its Incremental Term Loan Commitment and, if then not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Lenders evidencing such Loan Commitment and the Incremental Term LoansLoan Advance made pursuant thereto.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Inc)
Incremental Term Loans. (ai) The Borrower shall have the right may, by written notice to Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (a) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (b) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)c) and include the applicable completed whether such Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional U.S. Dollar Term Loans as an attachment thereto; provided that, notwithstanding anything or commitments to make term loans with terms different from the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental U.S. Dollar Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed“Other Term Loans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(bii) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Requisite Lenders, (a) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (b) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the U.S. Dollar Term Loans and (c) if the initial yield on such Other Term Loans (as determined by Administrative Agent to be equal to the sum of (1) the margin above the Adjusted LIBOR Rate on such Other Term Loans and (2) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Parent, Borrower or any Subsidiary of Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term 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 “Yield Differential”) the LIBOR Rate Margin then in effect for U.S. Dollar Term Loans, then the LIBOR Rate Margin then in effect for U.S. Dollar Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(diii) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective under this subsection 2.10 unless (a) on the date of such effectiveness, the conditions set forth in subsections 4.2B(i), (ii), (iii) and no (iv) shall be satisfied, (b) after giving effect to the making of any Incremental Term Loans and the use of the proceeds thereof, Borrower would be in pro forma compliance with the financial covenants set forth in subsections 7.6A and 7.6B as of and for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to subsection 6.1 (assuming for the purposes of subsection 7.6B that such transactions occurred at the end of such period and for the purposes of subsection 7.6A that such transactions occurred at the beginning of such period), (c) Administrative Agent shall have received an Officer’s Certificate of Borrower as to clauses (a) and (b) (with reasonably detailed calculations in the case of clause (b)) dated such date, and (d) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by Administrative Agent and consistent with those delivered on the Restatement Date under subsection 4.1.
(iv) Each of the parties hereto hereby agrees that Administrative Agent may, in consultation with Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing of outstanding U.S. Dollar Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding applicable LIBOR Rate Loan to be converted into a Base Rate Loan on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding applicable LIBOR Rate Loan on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the preceding sentence shall be subject to subsection 2.6. If any Incremental Term Loan is to be allocated to an existing Interest Period for a LIBOR Rate Loan, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under subsection 2.4A(i) required to be made after the making of such Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt ratably increased by the Administrative Agent aggregate principal amount of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Sources: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)
Incremental Term Loans. (a) The Borrower shall have Pursuant to Section 2.19 of the right from time to time during the term of this Credit Agreement, and subject to the terms and satisfaction of the conditions set forth in this Section 2.174 hereof, to request in writing incremental term loans on and as of the First Amendment Effective Date:
(the “i) Each 2013 Incremental Term LoansLender that is also already a Lender under the Credit Agreement (an “Increasing Term Loan Lender”) be made under this Agreement by hereby agrees that upon, and subject to, the occurrence of the First Amendment Effective Date, such 2013 Incremental Term Lenders Lender’s Commitment shall be increased, as contemplated by Section 2.19 of the Credit Agreement, by the amount set forth opposite such 2013 Incremental Term Lender’s name under the heading “2013 Additional Term Commitment” on Schedule 1 to this Amendment. From and after the First Amendment Effective Date, each reference in the Credit Agreement to any Increasing Term Loan Lender’s Commitment shall mean its Commitment, as increased pursuant to one or more this Amendment, and as set forth opposite its name on Schedule 1 to this Amendment under the heading “Total Commitment” on Schedule 1 to this Amendment.
(ii) Each 2013 Incremental Term Lender that is not, prior to the effectiveness of this Amendment, a Lender under the Credit Agreement (each, a “2013 Additional Term Loan AgreementsLender”), hereby agrees that upon, and subject to, the occurrence of the First Amendment Effective Date, such 2013 Incremental Term Lender shall be deemed to be, and shall become, a “Lender” and an “Additional Lender” for all purposes of, and subject to all the obligations of a “Lender” and an “Additional Lender” under, the Credit Agreement and the other Loan Documents, and shall have a Commitment that is equal to the amount set forth opposite such 2013 Incremental Term Lender’s name under the heading “2013 Additional Term Commitment” on Schedule 1 to this Amendment. Such notice to Each Loan Party and the Administrative Agent hereby agree that from and after the First Amendment Effective Date, each 2013 Additional Term Loan Lender shall be deemed to be, and shall become, a “Lender” for all purposes of, and with all the rights and remedies of a “Lender” under, the Credit Agreement and the other Loan Documents. From and after the First Amendment Effective Date, each reference in the Credit Agreement to any 2013 Additional Term Loan Lender’s Commitment shall mean its Commitment made pursuant to this Amendment, and as set forth opposite its name on Schedule 1 to this Amendment under the date heading “Total Commitment” on which such Incremental Term Loans are requested Schedule 1 to be made this Amendment.
(which shall not be less than three (3iii) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) All terms and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything conditions with respect to the contrary contained herein or in any Incremental Term Loan Agreement, such 2013 Incremental Term Loans shall mature be the same as the terms and conditions applicable to the existing Term Loans under the Credit Agreement.
(iv) Each 2013 Additional Term Loan Lender and each Increasing Term Loan Lender hereby agrees to make Incremental Term Loans to the Borrower on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent First Amendment Effective Date in a principal amount not to be unreasonably withheld, conditioned or delayedexceed its respective Commitment (as determined after giving effect to this Amendment), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such With respect to any 2013 Incremental Term Loans made on the First Amendment Effective Date, the “Applicable Margin” shall be made, at the option of same as for the Borrower, by existing Term Loans under the Credit Agreement (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred after giving effect to in this Section 2.17(b) being called an “Incremental Term Lender”Amendment); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each With respect to any 2013 Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request Loans existing on the First Amendment Effective Date, the “Maturity Date” shall execute and deliver to be the Administrative Agent an Incremental Term Loan Agreement and such other documentation same as the Administrative Agent shall reasonably specify to provide for the requested Incremental existing Term LoansLoans under the Credit Agreement.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Pursuant to Section 2.17 unless:
(i2.07(b) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term LoanCredit Agreement, the Borrower shall have executed and delivered Incremental Term Notes in favor repay to the Administrative Agent for the ratable account of such the 2013 Incremental Term Lenders evidencing such on the last Business Day of each March, June, September and December, commencing with the last Business Day of June 2013, an aggregate principal amount equal to 0.25% of the aggregate principal amount of the 2013 Incremental Term LoansLoans outstanding on the First Amendment Effective Date (each such date being referred to as a “2013 Incremental Term Loan Installment Date”).
(e) For the purposes of the Credit Agreement, the First Amendment Effective Date will be considered the “Incremental Facility Closing Date” and this Amendment shall be considered an “Incremental Facility Amendment”.
Appears in 1 contract
Incremental Term Loans. (ai) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Pelorus Refinancing Incremental Term Loans”) be made under this Agreement Loan. [***], the Borrowers may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent (whereupon the Agent shall set forth promptly deliver a copy to each Lender) request a one-time extension of a new Commitment from the Lenders (such new Commitment, the “Pelorus Refinancing Incremental Commitment”) to refinance the Pelorus Facility [***]. The notice delivered pursuant to this Section 2.1(c)(i) shall specify (A) the date on which such the Borrowers propose that the proposed Pelorus Refinancing Incremental Term Loans are requested to Commitment shall be made effective, (which shall not be less than three (3B) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion total amount of the Administrative Agent)Pelorus Refinancing Incremental Commitment requested by the Borrowers and (C) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything calculations demonstrating that after giving effect to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent making of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
Pelorus Refinancing Incremental Commitment (b) Any such Incremental Term Loans shall be made, at the option and inclusion of the Borrower, by (xPelorus Borrowers as Borrowers hereunder) one or more the pro forma Total Debt to Adjusted EBITDA Ratio is less than 4.0:1.0. The right to provide the Pelorus Refinancing Incremental Commitment shall first be offered to the existing Lenders and/or based on their Applicable Percentages (y) one or more financial institutions that is not an existing Lender (and, to the extent any such Lender or financial institution referred declines to in this Section 2.17(b) being called an “participate to the full extent of such Lender’s Applicable Percentage of such Pelorus Refinancing Incremental Term Lender”); provided that any Commitment, such non-existing Lender or financial institution uncommitted portion shall thereafter be offered (A) must be next to the Lenders participating to the full extent of their Applicable Percentage, based on their Applicable Percentage, and (B) finally to other Persons that are acceptable to the Agent (and, to the extent such other Person is not an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed acceptable to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Borrowers). Each Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, have the option in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall not be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedrequired, to the extent applicable, by each of the parties thereto (or, participate in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication Pelorus Refinancing Incremental Commitment based on its Applicable Percentage or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation lesser amount as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agentso offers; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans[***].
Appears in 1 contract
Sources: Loan Agreement (TerrAscend Corp.)
Incremental Term Loans. (a) The Borrower shall have At any time, the right from time to time during the term of this AgreementBorrowers may, and subject by written notice to the terms and conditions set forth Administrative Agent, elect to request the establishment of one or more incremental term loan commitments to make incremental term loan advances (each such advance, an “Incremental Term Loan Advance”) under one or more additional incremental term loan facilities to be included in this Section 2.17Agreement (each such facility, an “Incremental Term Loan Facility”), or commitments for additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility (such commitments with respect to request in writing incremental term loans (a new or existing Incremental Term Loan Facility, each individually, an “Incremental Term Loan Commitment” and collectively, the “Incremental Term LoansLoan Commitments”) be made under this Agreement by Incremental Term Lenders pursuant to one or more ). The aggregate amount of the Incremental Term Loan AgreementsCommitments made with respect to each new Incremental Term Loan Facility or for any additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility shall be, in each case, at least $50,000,000. Such Each such notice to shall specify the date (each, an “Increased Amount Date”) on which such Borrower proposes that any Incremental Term Loan Commitment(s) shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as the Administrative Agent shall set forth may agree in its sole discretion) after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed . The Borrowers may invite one or more Lenders or new lenders that are Eligible Assignees to provide an Incremental Term Loan Agreement Commitment (any such Person, an “Incremental Term Loan Lender”) for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein Loan Facility. Any Lender or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned Lender offered or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment for all or a portion of any Incremental Term Loan Facility may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(i) Subject to Section 1.06, no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of the proposed any Incremental Term Loans;Loan Advances pursuant thereto; 14520081v8
(ii) the Administrative Agent and the Lenders shall have received a certificate of each Borrower, dated as of such date and signed by a Responsible Officer of such Borrower, (i) certifying and attaching all conditions precedent for a Borrowing necessary resolutions, consents and/or approvals of such Borrower approving or consenting to such new Incremental Term Loan Facility or the making of additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility, as the case may be, and (ii) subject to Section 1.06, certifying that, before and after giving effect to such new Incremental Term Loan Facility or making of additional Incremental Term Loan Advances, as the case may be, (A) the representations and warranties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Increased Amount Date (except to the extent applicable 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 and except to the extent such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct as of such date), (B) no Default or Event of Default exists and (C) the Loan Parties shall be in compliance with the covenants set forth in Section 4.02 5.04 (calculated on a pro forma basis, as of Increased Amount Date but based upon the most recently ended Fiscal Quarter for which financial statements have been satisfiedor are required to have been delivered pursuant to Section 5.01(k));
(iii) the Borrower shall have provided proceeds of any Incremental Term Loan Cash Collateral Advances shall be used as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, specified in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agentapplicable Incremental Term Loan Amendment;
(iv) each Incremental Term Loan Commitment (and the Incremental Term Loan Advances made thereunder) shall constitute obligations of the applicable Borrower, and shall be guaranteed with all Term Loan Advances on a pari passu basis;
(v) subject to Section 1.06, after giving effect to any such Incremental Term Loan Advances (including, for purposes of such calculation, the aggregate amount of all Accordion Increases obtained on or prior to such date, assuming that such aggregate Accordion Increase has been fully drawn) on a pro forma basis, the Loan Parties shall have a Leverage Ratio no greater than 52.5%;
(vi) in the case of each Incremental Term Loan Facility (the terms of which shall be set forth in the relevant incremental term loan agreement (the “Incremental Term Loan Amendment”)):
(A) the Incremental Term Loan Advances made under such Incremental Term Loan Facility will mature and amortize in a manner reasonably acceptable to the Administrative Agent Agent, the Incremental Term Loan Lenders making such Incremental Term Loan Advances and the applicable Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining period until the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective or a maturity date earlier than the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective; 14520081v8
(B) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan Advances shall have received customary legal opinionsbe determined by the Administrative Agent, resolutions the applicable Incremental Term Loan Lenders and closing certificates the applicable Borrowers on the applicable Increased Amount Date;
(C) all other terms and other documentation as it conditions applicable to any Incremental Term Loan Facility shall reasonably request, in each case in form be consistent with the terms and substance conditions applicable to the existing Term Loan Facility or otherwise reasonably satisfactory to the Administrative Agent; and
(vD) such Incremental Term Loan Advances shall be made available only to Rayonier, ROC, TRS and/or RLP;
(vii) [reserved];
(viii) such Incremental Term Loan Commitments shall be effected pursuant to an Incremental Term Loan Amendment executed and delivered by the applicable Borrower(s), the Administrative Agent and the applicable Incremental Term Loan Lenders (which Incremental Term Loan Amendment may, without the consent of any other Lenders or Borrower, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.25(b));
(ix) the Incremental Term Loan Lenders shall be included in any determination of the Required Lenders, and, except as otherwise provided in Section 8.01 for certain instances, the Incremental Term Loan Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(x) the applicable Borrower(s) shall pay to the extent requested Administrative Agent such fees as may be agreed upon, based on current market conditions, to be retained by the Administrative Agent or distributed to Incremental Term Loan Lenders. On or after any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, but within the applicable availability period and subject to the foregoing terms and conditions, each Incremental Term Loan Lender making with an Incremental Term Loan, the Borrower Loan Commitment shall have executed and delivered make an Incremental Term Notes Loan Advance to the applicable Borrower in favor of an amount equal to its Incremental Term Loan Commitment and, if then not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Lenders evidencing such Loan Commitment and the Incremental Term LoansLoan Advance made pursuant thereto.
Appears in 1 contract
Sources: Credit Agreement (Rayonier, L.P.)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.172.20, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements, which Incremental Term Loans may or may not by their terms, at the election of the Borrower, automatically increase the aggregate amount of the Revolving Commitments of the Incremental Term Lenders upon any prepayment thereof in connection with a Permitted Acquisition or capital expenditure as provided in Sections 2.05(f) and 5.14(d); provided that no such Incremental Term Loan may by its terms provide for an automatic increase in the aggregate amount of the Revolving Commitments if the sum of (x) the aggregate principal amount of such Incremental Term Loans, plus (y) the aggregate principal amounts of any other Incremental Term Loans made under this Agreement that by their terms automatically increase the aggregate amount of the Revolving Commitments upon any prepayment thereof in connection with a Permitted Acquisition or capital expenditure as provided in Sections 2.05(f) and 5.14(d), plus (z) the aggregate amount of Commitment Increases then in effect, shall exceed $350,000,000. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to . Each request by the contrary contained herein or in any Borrower for an Incremental Term Loan Agreement, such Incremental Term Loans shall mature on that automatically increases the Maturity Date, shall not require aggregate amount of the Revolving Commitments upon any mandatory prepayments prepayment thereof and shall not amortize. In in connection with any such requesta Permitted Acquisition or capital expenditure as provided in Sections 2.05(f) and 5.14(d), is subject to the consent of the Administrative Agent shall be required and each Issuing Bank (such consent not to be unreasonably withheld, conditioned delayed or delayed)conditioned) as to the identity of each Incremental Term Lender, but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedobtained in connection with any such request.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b2.20(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must may not be an Eligible Ineligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 2.20 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 3.02(a) have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 5.14 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes promissory notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans, in form and substance reasonably satisfactory to such Incremental Term Lenders and the Agent.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an aggregate amount (together with the aggregate principal amount of Incremental Term Lenders Equivalent Debt incurred and outstanding pursuant to Section 6.01(b)(i) not to exceed the Incremental Amount from one or more Incremental Term Loan AgreementsLenders). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term 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 Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective, and (which shall not be less than three (3iii) Business Days nor more than 60 days after the date of whether such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional Term Loans as an attachment theretoor commitments to make term loans with terms different from the Term Loans (“Other Term Loans”); provided that, notwithstanding anything other than with respect to the contrary contained herein or terms specified in clauses (i) through (v) of Section 2.19(b), the terms of any Incremental Term Loan Agreement, such Incremental Other Term Loans shall mature on be reasonably satisfactory to the Maturity Date, shall not require any mandatory prepayments thereof Borrower and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedAgent.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender which shall be required entitled to become an Incremental Term Lender and any Lender agree or financial institution approached decline to provide an Incremental Term Loan may elect or decline, participate in its sole discretion) and additional banks, to provide such financial institutions and other institutional lenders who will become Incremental Term Loan.
(c) Lenders in connection therewith. The Borrower Borrower, the Administrative Agent and each Incremental Term Lender that has agreed to provide shall execute and deliver an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date applicable to the Initial Term Loans, (ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (iii) the prepayment provisions may provide for the requested ability to participate on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) in any mandatory prepayments of the Initial Term Loans, (iv) in the case of any Other Term Loans, if (A) the Effective Yield on such Other Term Loans exceeds (B) the Effective Yield of the Initial Term Loans (the amount of such excess of clause (A) over clause (B) being referred to herein as the “Yield Differential”) by more than 0.50%, then the Applicable Rate then in effect for Initial Term Loans shall automatically be increased such that the Yield Differential, after giving effect to such increase, is no more than 0.50%, effective upon the making of the Other Term Loans, and (v) the Other Term Loans shall rank equal in priority in right of payment and security with the Initial Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may, without the consent of any other Loan Party, Agent or Lender, revise this Agreement to evidence such amendments.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.19 unless (i) on the date of such effectiveness, no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
have occurred and be continuing, (ii) all conditions precedent for a Borrowing set forth representations and warranties made by the Loan Parties in Section 4.02 have been satisfied;
the Loan Documents shall be true and correct in all material respects (provided that any representations and warranties already qualified by materiality or material adverse effect shall be true and correct in all respects), (iii) on the date of such effectiveness the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof is in Pro Forma Compliance with the Financial Covenant, and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Effective Date under Section 4.01; provided, that, in each the case of an Incremental Term Commitment the proceeds of which are used to finance a Permitted Acquisition or other Investment (except where customary “Sungard” or “certain funds” conditionality is otherwise agreed to by the Lenders providing such Incremental Term Commitment, in form which case such limited conditionality shall apply), (A) the condition in clause (i) above shall be limited to no Payment or Bankruptcy Event of Default having occurred and substance reasonably satisfactory being continuing and (B) the condition in clause (ii) above shall be modified to solely require the accuracy in all material respects of customary “specified representations” (provided that any “specified representations” already qualified by materiality or material adverse effect shall be true and correct in all respects).
(d) Each of the parties hereto hereby agrees that the Administrative Agent; and
(v) Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), 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 Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.13. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.06(a)(i) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall 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 Lenders were entitled before such recalculation. The Incremental Term 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, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including (i) to increase the Effective Yield of the applicable Class of Term Loans to the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are “fungible” with such existing Class of Term Loans and/or (ii) to add or extend “soft call” or add or extend any other “call protection”, in either case for the benefit of any existing Class of Term Loans).
(e) This Section 2.19 shall supersede any provisions in Section 2.15 or 9.02 to the contrary.
Appears in 1 contract
Incremental Term Loans. (a) The Following the Effective Date, the US Borrower shall have the right may from time to time during through the term of this AgreementFinal Maturity Date, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such propose that Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoin accordance with this Section 3.10; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default has occurred and is continuing (or shall exist at the time occur as a result of the request or at requested Incremental Term Loan, (y) Borrowers shall be in pro forma compliance with all covenants set forth in this Agreement (both before and after giving effect to such Incremental Term Loan) and (z) the time of the making of US Borrower shall have provided to Agent satisfactory evidence that, both immediately before and after giving pro forma effect to the proposed Incremental Term Loan (any transactions to be consummated utilizing proceeds of the such Incremental Term Loan), the Total Leverage Ratio shall not exceed 2.75:1.00 and the Debt Service Coverage Ratio shall not be less than 1.30:1.00.
(b) The aggregate principal amount of any Incremental Term Loans made pursuant to this Section shall not exceed (together with any increases made to the Revolving Credit Aggregate Commitment pursuant to Section 2.10 of this Agreement) Ten Million and 00/100 Dollars ($10,000,000) and each Incremental Term Loan must be at least Five Million Dollars ($5,000,000.00) and in integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. Additionally, the final maturity date of any Incremental Term Loans shall not be earlier than the Final Maturity Date, and the rate of amortization on the Incremental Term Loan shall not be shorter than the rate of amortization applicable to the other Amortizing Loans;. The US Borrower shall provide at least thirty (30) days' written notice to the Agent (which shall promptly provide a copy of such notice to the Lenders) of any requested Incremental Term Loan. Subject to the last sentence in clause (d) below, each such notice delivered by the US Borrower shall be irrevocable and shall be binding on the US Borrower.
(c) The Agent shall deliver a copy of each notice of a requested Incremental Term Loan to such Lenders or other Persons that qualify as an Eligible Assignee as may be determined by the Agent in its reasonable discretion with the approval of US Borrower or as may be specified by the US Borrower. No Lender shall have any obligation to fund any Incremental Term Loan, and any decision by a Lender to fund any Incremental Term Loan shall be made in its sole discretion independently from any other Lender.
(d) If the Agent receives commitments from Lenders and/or from any other Person that (i) qualifies as an Eligible Assignee and is acceptable to Borrower and Agent in their reasonable discretion, and (ii) has agreed to be an Increase Additional Lender in respect of all conditions precedent for or a Borrowing set forth portion of the Incremental Term Loan, in Section 4.02 have been satisfied;
(iii) excess of the Borrower requested Incremental Term Loan, the Agent shall have provided the right, in its sole discretion, but with the consent of the US Borrower, to reduce and reallocate the shares of the Incremental Term Loan Cash Collateral as required of the Lenders or Increase Additional Lenders willing to fund such Incremental Term Loan so that the total equals the requested Incremental Term Loan. If the Agent does not receive commitments from Lenders (or Increase Additional Lenders) in an amount sufficient to fund the requested Incremental Term Loan, the Agent shall so notify the US Borrower and the request for an Incremental Term Loan Facility shall be deemed automatically rescinded.
(e) An agreement to fund Incremental Term Loans pursuant to this Section 6.10 hereof and shall become effective upon the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case an agreement in form and substance reasonably satisfactory to the Administrative Agent;
(iv) Agent and Borrower signed by US Borrower, by each Increase Additional Lender and by each existing Lender agreeing to fund Incremental Term Loans, setting forth the Administrative Agent shall have received customary legal opinionsnew Incremental Term Loans of such Lenders and setting forth the agreement of each Increase Additional Lender to become a party to this Agreement as a Lender and to be bound by all the terms and provisions hereof, resolutions together Notes executed by US Borrower with respect to such Incremental Term Loan and closing officer's certificates and other documentation as it shall reasonably request, in ratification agreements executed by each case in form of the Credit Parties and substance reasonably satisfactory such evidence of appropriate corporate authorization on the part of each of the Credit Parties with respect to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, amendments to any other Loan Documents reasonably requested by the Borrower shall have executed and delivered Agent in relation to the requested Incremental Term Notes in favor Loan (which amendments to the Loan Documents (other than this Agreement) the Agent is hereby authorized to execute on behalf of the Lenders), updates of lien searches from applicable jurisdictions, and such opinions of counsel for the Credit Parties with respect to the requested Incremental Term Lenders evidencing such Incremental Term LoansLoan and other assurances as the Agent may reasonably request.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject request additional loans to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to hereunder from one or more Incremental Term Loan Agreements. Such notice Lenders (which may but need not include any existing Lender) willing to provide such loans in their sole discretion; provided, that the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested have a right to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed)) to any prospective lender’s provision of such loans if such consent would be required under Section 9.04(b) for an assignment of Loans to such prospective lender. Such notice shall set forth (i) the amount of Loans being requested, but no consent of any Lender (ii) the date on which such Loans are requested to be made (or commitments therefor established) and (iii) whether such Loans will have terms identical to (other than in respect of any Lender providing an fees relating thereto) any class of Loans outstanding at such time or different from all classes of Loans outstanding at such time (any such loans advanced pursuant to this Section 2.13, “Incremental Term Loan pursuant to such request) is required to be obtainedLoans”).
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent and the Incremental Term Lenders shall reasonably specify to provide for evidence the requested commitment of such Incremental Term Lender to advance any such Incremental Term Loans.
(dc) Notwithstanding the foregoing, no Incremental Term Loans shall be made hereunder unless immediately after giving effect thereto such Loans are permitted to be incurred and outstanding under clause (i) or (iii) of the definition of Permitted Debt as of the date of incurrence.
(d) Notwithstanding anything to the contrary herein, the Borrower, the Administrative Agent and the applicable Incremental Term Lenders may amend or modify this Agreement and any other Loan Agreement shall become effective Document to the extent necessary to incorporate the existence, structure (including as delayed draw commitments) and no terms of any Incremental Term Loans (including to have such commitments or Loans included in the definition of Required Lenders, provide for tranche voting or form a single class with any Loans outstanding at such time). In addition, unless otherwise specifically provided herein, all references in the Loan Documents to Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at deemed, unless the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedcontext otherwise requires, to the extent applicable, by each of the parties thereto (or, in the case of any party as include references to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansLoans that are Loans made pursuant to this Agreement.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Pyxus International, Inc.)
Incremental Term Loans. (a) The At any time, Rayonier, ROC or, from and after becoming a Borrower shall have the right from time to time during the term of this Agreementhereunder, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Newco may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments to make incremental term loan advances (each such advance, an “Incremental Term Loan Advance”) under one or more additional incremental term loan facilities to be included in this Agreement (each such facility, an “Incremental Term Loan Facility”), or commitments for additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility (such commitments with respect to a new or existing Incremental Term Loan Facility, each individually, an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”). The aggregate amount of the Incremental Term Loan Commitments made with respect to each new Incremental Term Loan Facility or for any additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility shall set forth be, in each case, at least $50,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which Rayonier, ROC or Newco proposes that any Incremental Term Loan Commitment(s) shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed . Rayonier, ROC or Newco may invite one or more Lenders or new lenders that are Eligible Assignees to provide an Incremental Term Loan Agreement Commitment (any such Person, an “Incremental Term Loan Lender”) for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein Loan Facility. Any Lender or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned Lender offered or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment for all or a portion of any Incremental Term Loan Facility may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(i) Subject to Section 2.25(b)(ii), no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of the proposed any Incremental Term LoansLoan Advances pursuant thereto;
(ii) the Administrative Agent and the Lenders shall have received a certificate of each Borrower, dated as of such date and signed by the chief executive officer, chief financial officer or a senior vice president of such Borrower, (i) certifying and attaching all conditions precedent for necessary resolutions, consents and/or approvals of such Borrower approving or consenting to such new Incremental Term Loan Facility or the making of additional Incremental Term Loan Advances under any existing Incremental Term Loan Facility, as the case may be, and (ii) certifying that, before and after giving effect to such new Incremental Term Loan Facility or making of additional Incremental Term Loan Advances, as the case CHAR1\1713543v7 may be, (A) the representations and warranties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Increased Amount Date (except to the extent applicable 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 and except to the extent such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct as of such date) (except that, in connection with any acquisition not prohibited hereunder, the Incremental Term Loan Lenders may agree that certain representations and warranties need not be true and correct on any Increased Amount Date or any date there is a Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility and that, in such case, the only representations and warranties the accuracy of which will be a condition to Borrowing of Incremental Term Loan Advances under the relevant Incremental Term Loan Facility will be those set forth in Sections 4.01(a), (b), (c), (d), (j), (p) and (r) (the “Specified Representations”) with respect to each Borrower (after giving effect to such acquisition) and such of the representation and warranties made by or on behalf of the company being acquired (or selling assets) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that any Borrower or Subsidiary of a Borrower that a party to such acquisition agreement has the right to terminate its obligations, or decline to consummate the acquisition, under such acquisition agreement as a result of a breach of such representations and warranties), (B) no Default or Event of Default (other than as a result of any Specified Representation having been incorrect in any material respect when made) exists and (C) Rayonier shall be in compliance with the covenants set forth in Section 4.02 5.04 (calculated on a pro forma basis, as of Increased Amount Date but based upon the most recently ended Fiscal Quarter for which financial statements have been satisfiedor are required to have been delivered pursuant to Section 5.01(k));
(iii) the Borrower shall have provided proceeds of any Incremental Term Loan Cash Collateral as required pursuant Advances shall be used solely to Section 6.10 hereof and finance timberland acquisitions (including, for the Administrative Agent shall have received copies avoidance of the Collateral Documents or any amendments thereto doubt, acquisitions of Persons that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, are engaged in the case of any party as timber business) and/or to which an executed counterpart shall not have been receivedrefinance existing Debt, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agentpay related fees and expenses;
(iv) each Incremental Term Loan Commitment (and the Administrative Agent Incremental Term Loan Advances made thereunder) shall constitute obligations of Rayonier, ROC and/or Newco, as applicable, and shall be guaranteed with all Term Loan Advances on a pari passu basis;
(v) after giving effect to any such Incremental Term Loan Advances (including, for purposes of such calculation, the aggregate amount of all Accordion Increases obtained on or prior to such date, assuming that such aggregate Accordion Increase has been fully drawn) on a pro forma basis, Rayonier shall have received customary legal opinions, resolutions a Leverage Ratio no greater than 52.5%; CHAR1\1713543v7
(vi) in the case of each Incremental Term Loan Facility (the terms of which shall be set forth in the relevant incremental term loan agreement (the “Incremental Term Loan Amendment”)):
(A) the Incremental Term Loan Advances made under such Incremental Term Loan Facility will mature and closing certificates and other documentation as it shall amortize in a manner reasonably request, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent, the Incremental Term Loan Lenders making such Incremental Term Loan Advances and the applicable Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining period until the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective or a maturity date earlier than the Maturity Date for the Revolving Credit Facility as in effect on the date of such Incremental Term Loan Facility becomes effective;
(B) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan Advances shall be determined by the Administrative Agent, the applicable Incremental Term Loan Lenders and the applicable Borrowers on the applicable Increased Amount Date;
(C) all other terms and conditions applicable to any Incremental Term Loan shall be consistent with the terms and conditions applicable to the existing Term Loan Facility; and
(vD) such Incremental Term Loan Advances shall be made available only to Rayonier, ROC and/or Newco;
(vii) [reserved];
(viii) such Incremental Term Loan Commitments shall be effected pursuant to an Incremental Term Loan Amendment executed and delivered by the applicable Borrower(s), the Administrative Agent and the applicable Incremental Term Loan Lenders (which Incremental Term Loan Amendment may, without the consent of any other Lenders or Borrower, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.25(b));
(ix) the Incremental Term Loan Lenders shall be included in any determination of the Required Lenders, and, except as otherwise provided in Section 8.01 for certain instances, the Incremental Term Loan Lenders will not constitute a separate voting class for any purposes under this Agreement; and
(x) the applicable Borrower(s) shall pay to the extent requested Administrative Agent such fees as may be agreed upon, based on current market conditions, to be CHAR1\1713543v7 retained by the Administrative Agent or distributed to Incremental Term Loan Lenders. On or after any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, but within the applicable availability period and subject to the foregoing terms and conditions, each Incremental Term Loan Lender making with an Incremental Term Loan, the Borrower Loan Commitment shall have executed and delivered make an Incremental Term Notes Loan Advance to the applicable Borrower in favor of an amount equal to its Incremental Term Loan Commitment and, if then not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Lenders evidencing such Loan Commitment and the Incremental Term LoansLoan Advance made pursuant thereto.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Inc)
Incremental Term Loans. (a) Subject to the satisfaction of the conditions precedent set forth in Section 4 and Section 5 hereof, each Incremental Term Lender agrees, severally and not jointly, to make, on the Amendment Closing Date, an Incremental Term Loan to the Borrower in an aggregate principal amount equal to its Incremental Term Commitment. The Incremental Term Commitment of each Incremental Term Lender shall automatically terminate upon the making of the Incremental Term Loans on the Amendment Closing Date. The proceeds of the Incremental Term Loans shall be used by the Borrower (i) on the Amendment Closing Date to pay all fees and expenses of the Borrower payable in connection with this Amendment and any amendments to the Notes Indenture and the Senior Secured Notes Indenture entered into to permit the Incremental Term Loans and the Share Repurchase Program Payments and (ii) for working capital and other general corporate purposes (including Permitted Acquisitions) of Holdings, the Borrower and its Restricted Subsidiaries. The transactions contemplated by this Section 1(a) are collectively referred to as the “Incremental Facility Transactions”.
(b) Immediately upon the consummation of the Incremental Facility Transactions, each reference to the terms “Term Loan Lender” and “Lender” in the Loan Documents shall be deemed to include the Incremental Term Lenders.
(c) On and after the Amendment Closing Date, all Existing Term Loans and all Incremental Term Loans shall constitute the same Class of Loans for all purposes of the Credit Agreement, which Class of Loans is designated “Term Loans” in the Credit Agreement; and for the avoidance of doubt, shall have the right from time same terms, including, without limitation, as to time during guarantees, security, maturity and interest.
(d) Each of the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to parties hereto hereby agrees that the Administrative Agent shall set forth may, in consultation with the date Borrower, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of the making of the Incremental Term Loans on which the Amendment Closing Date, all such Incremental Term Loans are requested included in each Borrowing of Existing Term Loans on a pro rata basis.
(e) The initial Interest Period for all Term Loans (including, for purposes of clarity, the Existing Term Loans (after giving effect to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at conversion from LIBO Rate to Term SOFR on the discretion of Amendment Closing Date and the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Loans), commencing on the Amendment Closing Date, shall be a three-month Adjusted Term SOFR Interest Period commencing on the Amendment Closing Date and ending on March 31, 2022.
(f) The Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent are being incurred under clause (z)(1) of Section 2.13(a) of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedCredit Agreement.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right and any one or more Lenders (including New Lenders) may from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental agree that such Lenders shall make new term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) executing and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver delivering to the Administrative Agent an Incremental Term Loan Agreement Activation Notice specifying (i) the aggregate amount of such Incremental Term Loans, (ii) the proposed Incremental Term Loan Closing Date, which shall be a Business Day, and (iii) the Incremental Term Loan Maturity Date and the Applicable Margin for such Incremental Term Loans, which shall comply with Section 2.14(c) below. Notwithstanding the foregoing, without the consent of the Required Lenders, the aggregate original principal amount of all Incremental Term Loans after the Closing Date shall not exceed $30,000,000. Each Term A Lender and Term B Lender shall have the right to participate in its pro rata share of any Incremental Term Loans (based on the aggregate amount of such Lenders’ Term Loans A and Term Loans B), but no Lender shall have any obligation to participate in any Incremental Term Loans unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other documentation as entity which, with the consent of the Borrower and the Administrative Agent (which consent shall reasonably specify not be unreasonably withheld), elects to provide become a “Lender” under this Agreement in connection with any Incremental Term Loans shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Term Loan Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans effected on such date. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. Any Incremental Term Loans shall be on terms and pursuant to documentation to be determined; provided that:
(i) in the event that the weighted average life to maturity of such Incremental Term Loans is equal to or longer than the weighted average life to maturity of the Term Loans B (“Incremental Term Loans B”), and Pricing for such Incremental Term Loans B (A) is higher than Pricing for the requested Revolving Credit Facility, the Term A Facility or any other Incremental Term LoansLoan Facility comprised of Incremental Term Loans A, in any case by more than 50 basis points, then the Applicable Margin for the Revolving Credit Facility, the Term A Facility or such other Incremental Term Loan Facility, as the case may be, shall be increased to the extent necessary so that Pricing for such Facility is equal to Pricing for such Incremental Term Loans B minus 50 basis points and (B) is higher than Pricing for the Term B Facility or any other Incremental Term Loan Facility comprised of Incremental Term Loans B, then the Applicable Margin for the Term B Facility or such other Incremental Term Loan Facility, as the case may be, shall be increased to the extent necessary so that Pricing for such Facility is equal to Pricing for such Incremental Term Loans B;
(ii) in the event that the weighted average life to maturity of such Incremental Term Loans is shorter than the weighted average life to maturity of the Term Loans B (“Incremental Term Loans A”), and Pricing for such Incremental Term Loans A (A) is higher than Pricing for the Revolving Credit Facility, the Term A Facility or any other Incremental Term Loan Facility comprised of Incremental Term Loans A, then the Applicable Margin for the Revolving Credit Facility, the Term A Facility or such other Incremental Term Loan Facility, as the case may be, shall be increased to the extent necessary so that Pricing for such Facility is equal to Pricing for such Incremental Term Loans A and (B) is higher than the rate that is 50 basis points lower than the Pricing for the Term B Facility or any other Incremental Term Loan Facility comprised of Incremental Term Loans B, then the Applicable Margin for the Term B Facility or such other Incremental Term Loan Facility, as the case may be, shall be increased to the extent necessary so that Pricing for such Facility is equal to Pricing for such Incremental Term Loans A plus 50 basis points;
(iii) the final maturity date of such Incremental Term Loans shall not be earlier (but may be later) than the Maturity Date, and the weighted average life to maturity of such Incremental Term Loans shall not be shorter (but may be longer) than the weighted average life to maturity of the Term Loans A; and
(iv) other than terms provided for in this Section 2.14, such other terms shall be reasonably satisfactory to the Administrative Agent.
(d) Notwithstanding the foregoing, no The Incremental Term Loans shall constitute Obligations and shall, ratably with the other outstanding Loans, (i) be secured by and entitled to the benefits of the Loan Agreement Documents and the Collateral and (ii) share on a ratable basis in any mandatory prepayments of Term Loans A (unless the Incremental Term Lenders with respect to such Incremental Term Loans agree to receive mandatory prepayments after mandatory prepayments of the Term Loans A).
(e) The proceeds of Incremental Term Loans shall become effective only be used to finance Permitted Acquisitions and no permitted Earnout Payments. No Incremental Term Loans shall be provided under this Section 2.17 unless:
effective unless (i) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith, and (ii) on the applicable Incremental Term Loan Closing Date, (A) no Default or Event of Default shall exist at be continuing, and no Default or Event of Default would result from such Incremental Term Loans or from the time application of the request or at the time of the making of the proposed Incremental Term Loans;
proceeds thereof, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiiB) the Borrower representations and warranties of each Loan Party contained in Article V or in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be true and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, correct in all material respects (unless such representations and warranties are already qualified by each of the parties thereto (ormateriality, in the which case of any party they shall be true and correct in all respects) on and as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing Loan Closing Date as if made on such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in such respects as of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively, and (C) immediately after giving effect to such Incremental Term LoansLoans and the consummation of the Permitted Acquisition or permitted Earnout Payment to be financed with the proceeds thereof, the Consolidated Total Net Leverage Ratio as of such Incremental Term Loan Closing Date, using Pro Forma Consolidated Adjusted EBITDA for the most recently completed Measurement Period for which financial statements are available or required to have been delivered under Section 6.01(a) or (b), shall not exceed the lesser of (x) the maximum level then permitted under Section 7.11(a) minus 0.25x and (y) 3.75 to 1.00.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from From time to time during until the term 24-month anniversary of this Agreementthe Closing Date, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such Borrower may, upon written notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan Request”), elect to request that the Lender make additional term loans to the Borrower (each, an “Incremental Term Loan”) in an aggregate amount not to exceed $10,000,000 (and in a minimum amount of $1,000,000); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an at the time of the effectiveness of each Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of the making of the proposed after giving effect to such Incremental Term Loans;
Loan, (ii) all conditions precedent for a Borrowing the Loan Parties shall be in compliance with the covenants set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral 7.17 as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, Increased Amount Date before and after giving effect to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, and (iii) each of the Borrower conditions set forth in Section 3.03 shall have executed and delivered been satisfied. Each such notice shall specify the date (each, an “Increased Amount Date”) on which Borrower proposes that an Incremental Term Notes Loan shall be made, which date shall be at least fifteen (15) Business Days after the date the respective notice was received by Lender. Each Incremental Term Loan shall rank pari passu in favor right of payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of the other Obligations hereunder.
(b) Any Incremental Term Loan (i) for purposes of prepayments, shall be treated the same as (and in any event no more favorably than) the Initial Term Loan and the Delayed Draw Term Loan and (ii) shall have the same terms as the Initial Term Loan and the Delayed Draw Term Loan. When repaid, the repaid portion of an Incremental Term Loan may not be re-borrowed.
(c) From and after the making of an Incremental Term Loan pursuant to this Section 2.05, such Incremental Term Lenders evidencing such Incremental Loan shall be deemed a “Term Loan” hereunder for all purposes hereof, and shall be subject to the same terms and conditions as the other Term Loans.
(d) Each Incremental Term Loan Request shall set forth the requested amount and proposed terms of the requested Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (SuperCom LTD)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder or Affiliate of a Lender or an Approved Fund, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective, and (which shall not be less than three (3iii) Business Days nor more than 60 days after the date of whether such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional 2021 Term D Loans as an attachment thereto; provided thator commitments to make term loans with terms different from the 2021 Term D Loans, notwithstanding anything to the contrary contained herein or in any Incremental including Other Term Loan Agreement, such Incremental A Loans (“Other Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedLoans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide evidence the Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans (other than any Other Term A Loans) shall be no earlier than the Latest Term Loan Maturity Date in effect at the time the Incremental Term Loan Commitments with respect to such Other Term Loans become effective (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the latest maturity date of such refinanced Term Loans), (ii) the average life to maturity of the Other Term Loans (other than any Other Term A Loans) shall be no shorter than the then remaining average life to maturity of any other Class of Loans (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the then remaining average life to maturity of such refinanced Term Loans), (iii) if the initial yield (excluding upfront or arrangement or similar fees payable to the arranger, if any, of such loan) on such Other Term 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 Term Loans (the “Other Term Loan Margin”) (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same (as opposed to the arranger, if any, thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (1) the margin applicable for Eurodollar Term Loans of any Class (other than Other Term A Loans and any other Class of Term Loans that does not elect to be subject to this clause (iii) in its Incremental Term Loan Assumption Agreement or Loan Modification Agreement) (which margin shall be the sum of the Applicable Percentage for Eurodollar Term Loans of such Class (determined, solely for purposes of this Section 2.24, by reference to the Secured Net Leverage Ratio and the Total Leverage Ratio, as and to the extent applicable, in each case calculated on a pro forma basis after giving effect to any Specified Transaction to which such Other Term Loans relate and any Indebtedness incurred or expected to be incurred in connection therewith) (such margin, the “Other Term Loan Reference Margin”) increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) plus (2) the OID (if any) initially paid in respect of such Term Loans (for any Class of Term Loans, the applicable amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) then (I) the Applicable Percentage then in effect for such Class of Term Loans shall automatically be increased to the Other Term Loan Reference Margin plus the applicable Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential), (II) each interest rate margin with respect to such Class of Term Loans set forth in the definition of Applicable Percentage shall be increased by the Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential) and (III) the Applicable Percentage for such Class of Term Loans will thereafter be determined in accordance with the definition of Applicable Percentage as so amended and by reference to the Secured Net Leverage Ratio or Leverage Ratio, as the case may be and to the extent applicable; provided that in the event that the Applicable Percentage with respect to any such Class of Term Loans would be subject to any decrease as a result of any change in the Secured Net Leverage Ratio or the Leverage Ratio, as the case may be and to the extent applicable, the amount of any such decrease in the Applicable Percentage with respect to such Class of Term Loans shall not exceed the amount of any corresponding decrease, if any, in the Other Term Loan Margin as a result of such changes in the Secured Net Leverage Ratio and the Total Leverage Ratio, as the case may be and to the extent applicable, in each case effective upon the incurrence of such Other Term Loans and (iv) if the initial yield (excluding upfront or arrangement or similar fees payable to the arranger, if any, of such loan) on any Other Term A Loans (other than any Other Term A Loans that do not elect to be subject to this Section 2.24(b)(iv) in its Incremental Term Loan Assumption Agreement or Loan Modification Agreement) (as determined by the Administrative Agent on the same basis as the initial yield for Other Term Loans is determined pursuant to clause (iii) above) exceeds by more than 50 basis points the then-applicable yield (as determined by the Administrative Agent on the same basis as the then-applicable yield for existing Term Loans is determined pursuant to clause (iii) above) for the requested 2019 Term A Loans or any Class of Other Term A Loans (for the 2019 Term A Loans or any such Class of Other Term A Loans, the applicable amount of such excess above 50 basis points being referred to herein as the “TLA Yield Differential”) then (I) the Applicable Percentage then in effect for the 2019 Term A Loans and each other Class of Other Term A Loans shall automatically be increased to the Other Term Loan Reference Margin applicable thereto plus the applicable TLA Yield Differential (or, in the case of that portion, if any, of the TLA Yield Differential resulting from the “LIBOR floor” applicable to such new Other Term A Loans being greater than that applicable to the 2019 Term A Loans or such Class of Other Term A Loans on the date such new Other Term A Loans are made, by first increasing or (if no “LIBOR floor” is applicable to the 2019 Term A Loans or such existing Class of Other Term A Loans at such time) by adding a “LIBOR floor” with respect to such portion of the TLA Yield Differential), (II) each interest rate margin with respect to the 2019 Term A Loans or such existing Class of Other Term A Loans set forth in any table in the definition of Applicable Percentage, if any, shall be increased by the TLA Yield Differential (or, in the case of that portion, if any, of the TLA Yield Differential resulting from the “LIBOR floor” applicable to such new Other Term A Loans being greater than that applicable to the 2019 Term A Loans or such existing Class of Other Term A Loans on the date such new Other Term A Loans are made, by first increasing or (if no “LIBOR floor” is applicable to the 2019 Term A Loans or such existing Class of Other Term A Loans at such time) by adding a “LIBOR floor” with respect to such portion of the TLA Yield Differential) and (III) the Applicable Percentage for the 2019 Term A Loans or such existing Class of Other Term A Loans will thereafter be determined in accordance with the definition of Applicable Percentage as so amended and by reference to the Secured Net Leverage Ratio or Leverage Ratio, as the case may be and to the extent applicable; provided that in the event that the Applicable Percentage with respect to the 2019 Term A Loans or any such Class of existing Other Term A Loans would be subject to any decrease as a result of any change in the Secured Net Leverage Ratio or the Leverage Ratio, as the case may be and to the extent applicable, the amount of any such decrease in the Applicable Percentage with respect to the 2019 Term A Loans or such Class of existing Other Term A Loans shall not exceed the amount of any corresponding decrease, if any, in the Other Term Loan Margin as a result of such changes in the Secured Net Leverage Ratio and the Total Leverage Ratio, as the case may be and to the extent applicable, in each case effective upon the incurrence of such new Other Term A Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term LoansLoan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.24 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all applicable conditions precedent for a Borrowing set forth in paragraphs (b) and (c) of Section 4.02 have been satisfied;
(iii) the Borrower 4.01 shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto Borrower and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding 2021 Term D Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar 2021 Term D Term Loan Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar 2021 Term D Loan Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(v) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Closing Date by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent Agent, request one or more tranches of additional term loans denominated in Dollars hereunder by having an existing Lender or any other Person provide such additional term loan (each such Lender or Person, an “Incremental Term Lender”; each such new tranche, an “Incremental Term Facility”; each such additional term loan by an Incremental Term Lender, an “Incremental Term Loan” and the commitment of an Incremental Term Lender to provide an Incremental Term Loan, an “Incremental Term Loan Commitment”), which notice shall set forth specify the name of each proposed Incremental Term Lender, the amount of such Incremental Term Lender’s Incremental Term Loan Commitment, the date on which such Incremental Term Loans are requested to Facility shall be made effective (the “Incremental Loan Effective Date”) (which shall not be less than a Business Day at least three (3) Business Days nor more than 60 days (or such shorter period as agreed by the Administrative Agent) after the date delivery of such notice (which time periods may be modified or waived at and 30 days prior to the discretion of the Administrative AgentMaturity Date)) and include the applicable completed Incremental Term Loan Agreement for ; provided that each such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything Lender shall be subject to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the prior written consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no ) if such consent would be required under Section 11.6(b) for an assignment of any Lender (other than any Lender providing an Incremental Term Loan pursuant Loans to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan AgreementPerson; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unlessthat:
(i) notwithstanding anything to the contrary herein the aggregate principal amount of all Incremental Term Loans shall not exceed $375,000,000;
(ii) the minimum amount of any Incremental Term Loan Commitment or any Incremental Term Loan shall be $10,000,000 or a larger multiple of $1,000,000;
(iii) no Default or Event of Default shall exist at the time of the request have occurred and be continuing on such Incremental Loan Effective Date or at the time of the making of shall result from the proposed incurrence of Incremental Term Loans;
(iv) the representations and warranties contained in Section 5 and in the other Loan Documents shall be true correct in all material respects on and as of the Incremental Loan Effective Date as if made on and as of such date (or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(a) the final maturity date of any Incremental Term Facility shall be the Maturity Date (but Incremental Term Loans may have amortization prior to such date) and (b) the terms and conditions of any Incremental Term Facility shall be substantially the same as or less favorable to the Incremental Term Lenders than (and in any event no more favorable to the Incremental Term Lenders than) the terms and conditions of the existing Term Loans; provided that (i) the Incremental Term Loans may be priced differently than the Term Loans and (ii) all except as otherwise provided for in this Section 2.7, if the terms and conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided of any Incremental Term Loan Cash Collateral as required pursuant Facility are more favorable to Section 6.10 hereof and the Incremental Term Lenders than to those applicable to the Term Loans, any such more favorable terms must either be reasonably acceptable to the Administrative Agent shall have received copies (as evidenced by the Administrative Agent’s written consent to such terms) or conformed (or added) to the Loan Documents for the benefit of the Collateral Documents or any amendments thereto that Term Lenders in a manner reasonably satisfactory to the Administrative Agent Agent.
(b) Each Incremental Term Facility, shall deem reasonably necessary, signed, to the extent applicable, by each become effective as of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, relevant Incremental Loan Effective Date upon receipt by the Administrative Agent Agent, on or prior to 9:00 a.m., New York City time, on such Incremental Loan Effective Date, of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution (A) a certificate of a counterpart thereof by Responsible Officer of the Borrower stating that the conditions with respect to such party)Incremental Term Loan Commitment under the immediately preceding paragraph have been satisfied and (B) an Incremental Term Loan Amendment, in each case in form and substance reasonably satisfactory to the Borrower and the Administrative Agent;
(iv) , which shall provide for such Incremental Term Facility of each Incremental Term Lender and the other relevant terms relating thereto, duly executed by each Incremental Term Lender and the Borrower and acknowledged by the Administrative Agent, and customary legal opinions or other documents reasonably requested by the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, or the Incremental Term Lenders in each case in form and substance reasonably satisfactory to connection therewith.
(c) Upon the Administrative Agent; and
(v) ’s receipt of each such agreement executed by such parties, together with the other applicable documentation contemplated above, and subject to the extent requested by any foregoing terms and conditions, on the relevant Incremental Loan Effective Date each Incremental Term Lender making shall become a Lender hereunder with an Incremental Term Loan, and the Borrower Administrative Agent shall have executed record the information contained in such agreement in the Register and delivered give prompt notice thereof to the Borrower.
(d) Incremental Term Notes in favor of such Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Lenders evidencing such Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term LoansLender participating in such tranche of Incremental Term Loans and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.7.
(e) Notwithstanding anything herein to the contrary, in no event shall any Lender be obligated to provide any Incremental Term Facilities.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term of this AgreementClosing Date, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans one or more new commitments which may be of the same Class as any outstanding Term Loan (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”). Any request under this Section 2.12 shall specify the requested amount and proposed terms of the relevant Incremental Term Loans”) . Incremental Term Loans may be made under this Agreement by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment, nor will the Borrower have any obligation to approach any existing Lenders pursuant to one or more provide any Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatCommitment, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender’s making such Incremental Term Loans to the extent such consent, if any, would be required under Section 11.6(b)(iii) for an assignment of Term Loans to such Additional Lender.
(b) Notwithstanding anything to the contrary herein, without the prior written consent of the Collateral Documents or Required Lenders, the aggregate principal amount of Incremental Term Loans shall not exceed at the time Incurred, the sum of (i) (any amendments thereto that the Administrative Agent shall deem reasonably necessarysuch Incremental Term Loans and any Incremental Equivalent Debt, signedin each case, to the extent applicableIncurred under this clause (i), by each “Dollar Basket Incremental Debt”) the greater of (A) $150,000,000 and (B) 75.0% of the parties thereto amount of EBITDA for the most recent four (or4) consecutive Fiscal Quarters for which financial statements of the Borrower have been delivered hereunder, less the aggregate outstanding principal amount of all Incremental Term Loans and Incremental Equivalent Debt established prior to such time to the extent constituting Dollar Basket Incremental Debt; plus (ii) an additional amount (any such Incremental Term Loans and any Incremental Equivalent Debt, in each case, to the extent Incurred under this clause (ii), “Ratio-Based Incremental Debt”), so long as, in the case of this clause (ii), upon the effectiveness of the applicable Incremental Term Amendment or the relevant documentation relating to the relevant Incremental Equivalent Debt, as the case may be, and after giving effect to any party as such Incurrence on a pro forma basis (and after giving effect to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication any acquisition or other written confirmation from such party of execution of Investment consummated in connection therewith on a counterpart thereof by such partypro forma basis), in each case in form and substance reasonably satisfactory the Consolidated Secured Leverage Ratio is no greater than 3.00 to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent1.00; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.59
Appears in 1 contract
Sources: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Incremental Term Loans. (a) The At any time after the Closing Date, the Borrower shall have the right from time to time during the term of this Agreement, and subject may by written notice to the terms and conditions set forth in this Section 2.17, Administrative Agent elect to request in writing the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more incremental term loans under (i) the Term Loan Facility (each such loan, an “Incremental Term Increase”) or (ii) a newly established tranche of term loans (each newly established tranche, an “Incremental Term Facility”, and, together with each Incremental Term Increase, the “Incremental Term Loans”); provided that (1) be made under this Agreement by Incremental Term Lenders pursuant to one or more the total aggregate principal amount for all such Incremental Term Loan Agreements. Such notice Commitments shall not (as of any date of incurrence thereof) exceed the Maximum Incremental Amount at such time and (2) the total aggregate amount for each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall not be less than a minimum principal amount of $50,000,000 or, if less, the remaining amount permitted pursuant to the Administrative Agent foregoing clause (1). Each such notice shall set forth specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made Administrative Agent (which shall not be less than three (3) Business Days nor more than 60 days or such earlier date after the date of such notice (which time periods may be modified or waived at the discretion of is delivered as is acceptable to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that. The Borrower may invite any Lender, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent Affiliate of any Lender (and/or any Approved Fund, and/or any other than any Lender providing an Incremental Term Loan pursuant Person reasonably satisfactory to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; providedAgent, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) such Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto; provided that, in connection with any Incremental Term Loan Commitment, the proceeds of which are, substantially concurrently with receipt thereof, to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition, then the conditions set forth in subclause (1) and (2) above must only be satisfied at the time of the request or at the time of the making of the proposed Incremental Term Loansacquisition agreement for such Permitted Acquisition is entered into;
(iiB) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) if the Borrower shall have provided Incremental Term Loan Cash Collateral as required Commitment is proposed to be established pursuant to Section 6.10 hereof and clause (ii) of the definition of “Maximum Incremental Amount”, the Administrative Agent shall have received copies from the Borrower a duly completed certificate signed by a Responsible Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessaryBorrower demonstrating, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent, that the proposed Incremental Term Loan Commitment will not exceed the limitation set forth in said clause (ii) of the definition of “Maximum Incremental Amount”;
(ivC) each of the representations and warranties contained in Article VIII of this Agreement and each other Loan Document shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects) immediately before and after giving effect to such Incremental Term Loan Commitment and the making of the Incremental Term Loans pursuant thereto with the same effect as if made on and as of such time (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall have been true and correct as of such earlier date); provided that, in connection with any Incremental Term Loan Commitment, the proceeds of which are, substantially concurrently with the receipt thereof, to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct as of the funding of the Incremental Term Loans thereunder shall be (x) the Administrative Agent Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Subsidiaries) has the right to terminate or elect not to perform its obligations under such acquisition agreement as a result of the inaccuracy of any such representations or warranties in such acquisition agreement);
(D) (i) the terms of any Incremental Term Increase shall have received customary legal opinions, resolutions be on the same terms thereafter applicable to the Initial Term Loans (including mandatory and closing certificates voluntary prepayment provisions); and other documentation (ii) the terms of any Incremental Term Facility (except as it otherwise specifically addressed in this Section 6.13) shall reasonably request, in each case in form and substance otherwise be reasonably satisfactory to the Administrative Agent; and;
(vE) to the extent requested by any each Incremental Term Lender making an Loan Commitment (and the Incremental Term Loan, Loans made thereunder) shall (x) constitute Obligations and shall be secured and guaranteed with the Borrower shall have executed other Extensions of Credit on a pari passu basis and delivered (y) be permitted to be so secured under the Intercreditor Agreement;
(F) in the case of each Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Facility:
Appears in 1 contract
Sources: Term Loan Credit Agreement (Beacon Roofing Supply Inc)
Incremental Term Loans. The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Loan Commitments shall be as agreed between the Borrower and the applicable IncrementalAdditional Lenders providing such Incremental Term Loan Commitments, and except as otherwise set forth herein, to the extent not consistent with the Term Loans existing on the Incremental Facility Closing Date, shall be consistent with clauses (iA) through (iiiC) below, as applicable, and otherwise reasonably satisfactory to the Lender RepresentativeAdministrative Agent (acting at the direction of the Required Lenders) (except for covenants or other provisions (a) The Borrower shall have conformed (or added) in the right from time to time during the term of this Agreement, and subject Loan Documents pursuant to the terms and conditions set forth related Incremental Amendment for the benefit of the Lenders or (b) applicable only to periods after the Latest Maturity Date as of the Incremental Amendment Date); provided that in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more case of an Incremental Term Loan Agreements. Such notice to IncreaseFacility that increases any existing Class, the Administrative Agent shall set forth terms, provisions and documentation (other than the date on which Incremental Amendment evidencing such increase) of such Incremental Term Loans are requested Loan IncreaseFacility shall be identical (other than with respect to be made (which shall not be less than three (3upfront fees, original issue discount or similar fees) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include to the applicable completed Incremental Term Loan Agreement for such Incremental Class of Term Loans being increased, in each case, as an attachment thereto; provided that, notwithstanding anything to existing on the contrary contained herein or in Incremental Facility Closing Date. In any event:
(i) any collateral securing any Incremental Term Loan Agreementshall also secure all other Obligations on a pari passu basis;
(A) any Incremental Term Loan shall be secured only by the Collateral (or a portion thereof) on a pari passu or junior lien basis and shall only be guaranteed by the Guarantors (or a subset thereof); provided, that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor; provided, further, that for the avoidance of doubt, any Incremental Term Loan may also be unsecured;
(B) (ii) the Incremental Term Loans shall mature on not have a final scheduled maturity date earlier than the latest Maturity Date as of the Incremental Amendment Date, ;
(C) (iii) the Incremental Term Loans shall have a Weighted Average Life to Maturity not require any mandatory prepayments thereof and shall not amortize. In connection with any such requestshorter than the Weighted Average Life to Maturity of the Initial Term Loans, the consent Delayed Draw Term Loans, Eleventh Amendment Incremental Term Loans or any Extended Term Loans as to which the Initial Term Loans, or the Delayed Draw Term Loans or the Eleventh Amendment Incremental Term Loans were the Existing Term Loan Tranche; provided that for purposes of determining the Administrative Agent shall be required (Weighted Average Life to Maturity of such consent not Initial Term Loans, Delayed Draw Term Loans, Eleventh Amendment Incremental Term Loans or any Extended Term Loans as to be unreasonably withheldwhich the Initial Term Loans, conditioned or delayed)the Delayed Draw Term Loans or the Eleventh Amendment Incremental Term Loans were the Existing Term Loan Tranche, but no consent the effects of any Lender (other than any Lender providing an amortization payments and prepayments made on such Initial Term Loans, Delayed Draw Term Loans, Eleventh Amendment Incremental Term Loan pursuant Loans or Extended Term Loans prior to such request) is required to be obtained.
(b) Any the incurrence of such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loansdisregarded;
(iiD) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinionsproceeds, resolutions and closing certificates and other documentation as it shall reasonably requestif any, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by of any Incremental Term Lender making an Incremental Term Loan, Loan Commitment may be used by the Borrower shall have executed and delivered its Subsidiaries for any purposes permitted by Section 5.08the applicable Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.Amendment;
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from At any time to time during the term of this Agreement, and subject prior to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such Maturity Date, the Borrower may, by notice to the Administrative Agent Agent, which shall set forth promptly deliver a copy thereof to each of the date on which Lenders (the "Incremental Facility Notice"), request the addition of a new tranche of term loans hereto (the "Incremental Term Loans"); provided, however, that both (x) at the time of any such request and (y) after giving effect to any such Incremental Term Loans are requested Loans, no Default shall exist and the Borrower shall be in compliance with each Financial Performance Covenant (calculated, in the case of clause (y), on a pro forma basis to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date give effect to any borrowing of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Loans). The Incremental Term Loans shall (i) be in an aggregate principal amount not in excess of $250,000,000 but in no event less than $50,000,000, (ii) rank pari passu in right of payment and of security with the other Loans (and the Additional Funded LC Facility (if any)), (iii) mature and amortize in a manner reasonably acceptable to the Initial Lenders, but in any event have an average weighted life equal to or longer than the Term Loans and mature on a date no earlier than the Term Loan Maturity Date, shall not require any mandatory prepayments thereof (iv) have such pricing as may be agreed by the Borrower and shall not amortize. In connection the Persons providing such Incremental Term Loans; provided, that the yield with any such request, respect to the consent of the Administrative Agent shall be required Incremental Term Loans (such consent not taking into account upfront fees paid to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan lenders) may be no more than 0.25% per annum greater than the then-current yield with respect to the Term Loans and the Additional Funded LC Facility (if any) the time the Incremental Facility Amendment (as defined below) becomes effective pursuant to its terms (it being understood that the pricing of the Term Loans and/or the Additional Funded LC Facility (if any) will be increased and/or additional fees will be paid to the Term Lenders or Additional Funded LC Facility lenders (if any) to the extent necessary to satisfy such requestrequirement), and (v) is required otherwise be treated hereunder substantially the same as (and in any event no more favorably than) the Term Loans (including with respect to be obtained.
(b) Any such the voluntary and mandatory prepayment provisions); provided, that the terms and provisions applicable to the Incremental Term Loans may provide for financial or other covenants different or in addition to those applicable to the Term Loans and the Additional Funded LC Facility (if any) only to the extent that such terms and provisions are applicable only during periods after the Term Loan Maturity Date. The Incremental Facility Notice shall be made, at (i) set forth the option requested amount of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeLoans, (Bii) must have an offer each Lender the opportunity to offer a commitment (the "Incremental Commitment") to provide Incremental Term Loan Loans by giving written notice of at least $5,000,000 unless otherwise agreed such offered commitment to by the Administrative Agent and the Borrower prior to the termination of the general syndication of the Incremental Term Loans and (Ciii) must become an be provided to each existing Lender not less than five Business Days prior to the commencement of the general syndication of the Incremental Term Loans; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. At any point during or after the expiration of the Incremental Term Loan Offer Period, the Borrower shall have the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Term Loan Lender") to extend commitments to provide Incremental Term Loans; provided that the Additional Term Loan Lenders shall be offered the opportunity to provide the Incremental Term Loans only on terms previously offered to the existing Lenders pursuant to the Incremental Facility Notice. Each Commitment in respect of Incremental Term Loans shall become a Commitment under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide facility for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under implemented hereunder pursuant to an amendment to this Section 2.17 unless:
Agreement (ian "Incremental Facility Amendment") no Default or Event of Default shall exist at the time executed by each of the request or at Borrower, Allied Waste, each other Loan Party, each Lender agreeing to provide an Incremental Commitment, if any, each Additional Term Loan Lender, if any, and the time Administrative Agent, which Incremental Facility Amendment will not require the consent of any other Lender. The effectiveness of any Incremental Facility Amendment shall (in addition to any other conditions specified therein) be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Term Loans are made, of each of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans4.02.
Appears in 1 contract
Incremental Term Loans. (ai) The Borrower shall have the right from time may, by notice to time during the term of this AgreementAdministrative Agent, and subject to the terms and conditions set forth in this Section 2.17, elect to request in writing the establishment of incremental term loans loan commitments (the “Incremental Term LoansLoan Commitments”) be made under this Agreement by Incremental Term Lenders pursuant ); provided that upon giving effect to one or more such establishment, the aggregate principal amount of the Incremental Term Loan AgreementsCommitments shall not exceed $30,000,000. Such The Borrower shall request Incremental Term Loan Commitments in a minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof. Each such notice to shall specify (A) the Administrative Agent date (each, an “Incremental Amount Date”) on which the Borrower proposes that the Incremental Term Loan Commitments shall set forth be effective, which shall be not less than ten Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made Administrative Agent and (B) the identity of each Lender, which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified a Term Loan Lender or waived at the discretion of the Administrative Agent)a Person that is not then a Term Loan Lender and meeting such requirements set forth in Section 11.2(b) and include the applicable completed Incremental becoming a party hereto as a Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection Lender with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
Commitment (b) Any such Incremental Term Loans shall be madeeach, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Loan Lender”); provided that , to whom the Borrower proposes any portion of such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan Commitments be allocated and the amounts of at least $5,000,000 unless otherwise agreed to by the such allocations. The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Incremental Amount Date and in the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Commitments respect thereof. Such Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no as of such Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at Amount Date upon the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case satisfaction in form and substance reasonably satisfactory to the Administrative Agent;Agent of the conditions set forth in Section 2.19(c).
(ivii) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by On any Incremental Amount Date on which any Incremental Term Lender making an Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each Incremental Term Loan, Loan Lender shall make a loan to the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.(an
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right may at any time or from time to time during the term of this Agreementtime, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing incremental one or more additional tranches of term loans (the “Incremental Term Loans”) be made under in accordance with this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which Section 2.18.2.18; provided that if, after incurring any such Incremental Term Loans, the aggregate principal amount of all Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days and increases in the revolving commitments provided under the ABL Facility incurred after the Second Amendment and Restatement Date would exceed $250,000,000, then the Borrower may only incur any Incremental Term Loans if the Senior Secured Leverage Ratio, as of the date of such notice (which time periods may be modified or waived at the discretion effectiveness of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for any such Incremental Term Loans as an attachment thereto; Loans, would be equal to or less than 2.50:1.00, calculated on a Pro Forma Basis (provided that, notwithstanding anything to the contrary contained herein or in that any Incremental Term Loan Agreement, cash proceeds of such Incremental Term Loans shall mature on not be netted from Consolidated Senior Secured Indebtedness for purposes of calculating the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedSenior Secured Leverage Ratio), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Each tranche of Incremental Term Loans shall be madein an aggregate principal amount of not less than $25,000,000 (provided that such amount may be less if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, at the option aggregate amount of the Borrower, by all for Incremental Term Loans shall not exceed an amount equal to (x) $200,000,000 minus (y) the aggregate amount of commitment increases made pursuant to Section 2.20 of the ABL Facility.). In addition, (i) each tranche of the Incremental Term Loans shall rank pari passu in right of payment and have the equal benefit of Guarantees and Collateral with the Term Loans, (ii) such tranche of the Incremental Term Loans shall not have a final maturity date earlier than the Maturity Date and its Weighted Average Life to Maturity shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) at the time of and immediately after giving effect to the incurrence of such Incremental Term Loans, no Event of Default shall have occurred and be continuing, (iv) the representations and warranties of each Credit Party set forth in the Financing Documents shall be true and correct in all material respects on the date of incurrence of such Incremental Term Loans (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of the date of such Borrowing of Incremental Term Loans, (v) at the time of incurrence of any Incremental Term Loan and immediately after giving effect thereto, (A) the Borrower shall be in compliance with the financial covenants set forth in Article 6 hereof on a Pro Forma Basis and (B) the Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 2.50:1.00 3.00:1:00 on a Pro Forma Basis, (vi) the interest rate margins and, subject to clause (B) in the proviso, the amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the lenders of such Incremental Term Loans and (vii) except as set forth in clauses (ii) and (vi) above, to the extent the terms and conditions applicable to any tranche of Incremental Term Loans are inconsistent from those of the Term Loans, such differences shall be reasonably satisfactory to the Administrative Agent and set forth in the applicable Incremental Amendment; provided that, (A) in the event that the interest rate margins applicable to any Incremental Term Loans are more than 50 basis points greater than the then Applicable Rate for the Term Loans, the then Applicable Rate for the Term Loans shall be increased to the extent necessary so that the interest rate margins for the Incremental Term Loans are no more than 50 basis points greater than the then Applicable Rate for the Term Loans (provided that in determining the Applicable Rate applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans or lenders of the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four (4)-year life to maturity), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their affiliates) in connection with the Term Loans or to one or more existing Lenders and/or arrangers (yor their affiliates) one or more financial institutions that of the Incremental Term Loans shall be excluded and (z) if the LIBO Rate floor applicable to the Incremental Term Loans is higher than the LIBO Rate floor applicable to the Term Loans, the amount of such difference shall be deemed to be an increase to the Applicable Rate for the Incremental Term Loans for the purposes of determining compliance with this clause (A); and (B) the amortization schedule applicable to any tranche of Incremental Term Loans shall be determined by the Borrower and the lenders thereof, in each case so long as the Weighted Average Life to Maturity for any tranche of Incremental Term Loans shall not an be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans. Each notice from the Borrower pursuant to this Section 2.18(b) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) Incremental Term Loans may be made, by any existing Lender (and each existing Term Lender shall have the right, but not an obligation, to make a portion of any such Lender or financial institution referred to Incremental Term Loan, on terms permitted in this Section 2.17(b2.18 and otherwise on terms reasonably acceptable to the Administrative Agent) being called or by any other bank or other financial institution (any such other bank or other financial institution, an “Incremental Term Additional Lender”); provided that any the Administrative Agent shall have consented (not to be unreasonably withheld) to such non-existing Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.04(b) for an assignment of Loans as applicable, to such Lender or financial institution Additional Lender.
(Ad) must be an Eligible Assignee, (B) must have an Commitments in respect of Incremental Term Loan Loans shall become Term Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment,” and the date of at least $5,000,000 unless otherwise agreed effectiveness of such Incremental Amendment, an “Incremental Facility Closing Date”) to this Agreement and, as appropriate, the other Facility Documents, executed by the Borrower, each Lender agreeing to provide such Term Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to this Agreement and the other Facility Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18. The Borrower and (C) must become an may use the proceeds of the Incremental Term Lender under Loans for any purpose not prohibited by this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(ce) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request This Section 2.18 shall execute and deliver supersede any provisions in Section 2.15 or 10.02 to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loanscontrary.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Sources: Second Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Incremental Term Loans. (a) The On or prior to February 2, ----------------------- 2002, the Borrower shall have the right from time to time during the term of this Agreementmay, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loans (the "Incremental Term Loans"); provided, however, that ---------------------- ------- both at the time of any such request and after giving effect to any such Incremental Term Loans, no Default shall exist and the Borrower shall be in Pro Forma Compliance with each financial covenant. The Incremental Term Loans shall (i) be in an aggregate principal amount not in excess of $150,000,000, (ii) rank pari passu in right of payment and of security ---- ----- with the other Loans, (iii) have an average weighted life equal to or longer than the Tranche A Term Loans, Tranche C Term Loans and the Tranche D Term Loans, (iv) be drawn on or prior to February 2, 2002, (v) have such pricing as may be agreed by the Borrower and the Persons providing such Incremental Term Loans and (vi) otherwise be treated hereunder no more favorably than the Tranche A Term Loans, Tranche C Term Loans and the Tranche D Term Loans. Such notice shall set forth the date on which such requested amount of Incremental Term Loans, and shall offer each Lender the opportunity to offer a commitment (the "Incremental Commitment") to provide Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date by giving written notice of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything offered ---------------------- commitment to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and within a time period (Cthe "Offer Period") must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreementto be specified in the Borrower's notice; provided, further-------- however, that no existing Lender will be obligated to subscribe for any portion ------- of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall be required to become have provided commitments in an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to aggregate amount less than the Administrative Agent an Incremental Term Loan Agreement and such other documentation as total amount of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt requested by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term LoanBorrower, the Borrower shall have executed and delivered the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide Incremental Term Notes ----------------- Loans in favor an aggregate amount equal to the unsubscribed amount; provided that -------- each Additional Lender shall be subject to the approval of such the Administrative Agent (which approval shall not be unreasonably withheld); and provided further -------- ------- that the Additional Lenders shall be offered the opportunity to provide the Incremental Term Loans only on terms previously offered to the existing Lenders evidencing such pursuant to the immediately preceding sentence. Commitments in respect of Incremental Term LoansLoans shall become Commitments under this Agreement pursuant to an Incremental Facility Amendment executed by each of the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Term Loans are made, of each of the conditions set forth in Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Triton PCS Inc)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Amount from one or more Incremental Term Loan AgreementsLenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder or Affiliate of a Lender or an Approved Fund, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective, and (which shall not be less than three (3iii) Business Days nor more than 60 days after the date of whether such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Commitments are commitments to make additional 2021 Term H Loans as an attachment thereto; provided thator commitments to make term loans with terms different from the 2021 Term H Loans, notwithstanding anything to the contrary contained herein or in any Incremental including Other Term Loan Agreement, such Incremental A Loans (“Other Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayedLoans”), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans (other than any Other Term A Loans) shall be no earlier than the Latest Term Loan Maturity Date in effect at the time the Incremental Term Loan Commitments with respect to such Other Term Loans become effective (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the latest maturity date of such refinanced Term Loans), (ii) the average life to maturity of the Other Term Loans (other than any Other Term A Loans) shall be no shorter than the then remaining average life to maturity of any other Class of Loans (or, in the case of Other Term Loans all of the proceeds of which will be used to repay existing Term Loans (other than Other Term A Loans), the then remaining average life to maturity of such refinanced Term Loans) and (iii) if the initial yield (excluding upfront or arrangement or similar fees payable to the arranger, if any, of such loan) on such Other Term 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 Term Loans (the “Other Term Loan Margin”) (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same (as opposed to the arranger, if any, thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (1) the margin applicable for Eurodollar Term Loans of any Class (other than Other Term A Loans and any other Class of Term Loans that does not elect to be subject to this clause (iii) in its Incremental Term Loan Assumption Agreement or Loan Modification Agreement) (which margin shall be the sum of the Applicable Percentage for Eurodollar Term Loans of such Class (determined, solely for purposes of this Section 2.24, by reference to the Secured Net Leverage Ratio and the Total Leverage Ratio, as and to the extent applicable, in each case calculated on a pro forma basis after giving effect to any Specified Transaction to which such Other Term Loans relate and any Indebtedness incurred or expected to be incurred in connection therewith) (such margin, the “Other Term Loan Reference Margin”) increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) plus (2) the OID (if any) initially paid in respect of such Term Loans (for any Class of Term Loans, the applicable amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) then (I) the Applicable Percentage then in effect for such Class of Term Loans shall automatically be increased to the Other Term Loan Reference Margin plus the applicable Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential), (II) each interest rate margin with respect to such Class of Term Loans set forth in the definition of Applicable Percentage shall be increased by the Yield Differential (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Term Loans on the date such Other Term Loans are made, by first increasing or (if no “LIBOR floor” is applicable to such Class of Term Loans at such time) by adding a “LIBOR floor” with respect to such portion of the Yield Differential) and (III) the Applicable Percentage for such Class of Term Loans will thereafter be determined in accordance with the definition of Applicable Percentage as so amended and by reference to the Secured Net Leverage Ratio or Leverage Ratio, as the case may be and to the extent applicable; provided that in the event that the Applicable Percentage with respect to any such Class of Term Loans would be subject to any decrease as a result of any change in the Secured Net Leverage Ratio or the Leverage Ratio, as the case may be and to the extent applicable, the amount of any such decrease in the Applicable Percentage with respect to such Class of Term Loans shall not exceed the amount of any corresponding decrease, if any, in the Other Term Loan Margin as a result of such changes in the Secured Net Leverage Ratio and the Total Leverage Ratio, as the case may be and to the extent applicable, in each case effective upon the incurrence of such Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan 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 Term Loan Commitment and the Incremental Term Loans evidenced thereby.
(dc) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.24 unless (i) no Default or Event on the date of Default shall exist at such effectiveness, the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all applicable conditions precedent for a Borrowing set forth in paragraphs (b) and (c) of Section 4.02 have been satisfied;
(iii) the Borrower 4.01 shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto Borrower and (or, ii) except as otherwise specified in the case of any party as to which an executed counterpart shall not have been receivedapplicable Incremental Term Loan Assumption Agreement, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and other documentation as it shall reasonably requestconsistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding 2021 Term H Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar 2021 Term H Term Loan Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding Eurodollar 2021 Term H Loan Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(iii) required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Fourth Amendment and Restatement Agreement (Community Health Systems Inc)
Incremental Term Loans. (a) The At any time, the Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall set forth not exceed $300,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date Administrative Agent. The Borrower may invite any Lender, any Affiliate of such notice (which time periods may be modified or waived at the discretion of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Loan Commitment. Any Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unlessthat:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Consolidated Company Investment not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);
(C) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating that the Credit Parties will be in compliance on a pro forma basis with the financial covenants set forth in Section 6.1 after giving effect to (1) any Incremental Term Loan Commitment, (2) the making of any Incremental Term Loans pursuant thereto and (3) any Consolidated Company Investment consummated in connection therewith; provided that if such Incremental Term Loans are incurred in connection with a Consolidated Company Investment or an irrevocable redemption or repayment of Indebtedness, compliance with the financial covenants set forth in Section 6.1 may be determined, at the option of the Parent, at the time of signing the request applicable acquisition agreement or at the time date of the making irrevocable notice of the proposed redemption or repayment, as applicable (in which case, such Incremental Term Loans;
Loans will be deemed outstanding for purposes of calculating the maximum amount of Indebtedness that can be incurred under any leverage-based test hereunder); provided further, that if the Parent has made such election, in connection with the calculation of any financial ratio (ii) all conditions precedent for a Borrowing other than the financial covenants set forth in Section 4.02 6.1) on or following such date and prior to the earlier of the date on which such Consolidated Company Investment is consummated or the definitive agreement for such Consolidated Company Investment is terminated or such redemption or repayment is made, as applicable, any such ratio shall be calculated on a Pro Forma Basis assuming such Consolidated Company Investment, redemption or repayment and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been satisfiedconsummated, except to the extent such calculation would result in a lower leverage ratio than would apply if such calculation was made without giving pro forma effect to such Consolidated Company Investment, redemption, repayment, other pro forma events and Indebtedness;
(iiiD) the Borrower proceeds of any Incremental Term Loans shall have provided be used solely for the Investment Purpose;
(E) each Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof Commitment (and the Administrative Agent Incremental Term Loans made thereunder) shall have received copies constitute obligations of the Collateral Documents or any amendments thereto that Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(w) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent Agent, the Incremental Term Loan Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Latest Maturing Loan or a maturity date earlier than the Latest Maturity Date;
(x) the Applicable Percentage and pricing grid, if applicable, for such Incremental Term Loan shall deem reasonably necessary, signedbe determined by the applicable Incremental Term Loan Lenders and the Borrower on the applicable Increased Amount Date;
(y) all other terms and conditions applicable to any Incremental Term Loan, to the extent applicable, by each of not consistent with the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form terms and substance reasonably satisfactory conditions applicable to the Administrative Agent;
(iv) the Administrative Agent existing Term Loan, shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance be reasonably satisfactory to the Administrative Agent; and
(vz) such Incremental Term Loans shall be made available only to the Borrower and only in U.S. Dollars; it being understood that, to the extent requested by any financial maintenance covenant is added for the benefit of any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Loan Commitment or any Incremental Term Loans., no consent with respect to such financial maintenance covenant shall be required from the Administrative Agent or any existing Lender so long as such financial maintenance covenant is added to this Agreement for the benefit of the existing Commitments and Loans;
Appears in 1 contract
Sources: Credit Agreement (WestRock Co)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended by this Section 2.17Amendment), each Incremental Term Lender agrees, severally and not jointly, to request make an Incremental Term Loan to the Borrower in writing incremental term loans a single drawing on the Amendment Effective Date in the principal amount set forth opposite such Incremental Term Lender’s name on Schedule I hereto (the commitment of each Incremental Term Lender to make such Incremental Term Loan being called its “Incremental Term Commitment”). Amounts repaid in respect of Incremental Term Loans may not be reborrowed.
(b) Except as provided herein, the terms of the Incremental Term Loans shall be identical to those of the Term Loans outstanding immediately prior to the effectiveness of this Amendment (the “Incremental Existing Term Loans”). In furtherance of the foregoing, effective as of the Amendment Effective Date, the first sentence of Section 2.10(a) of the Credit Agreement is hereby amended in its entirety to read as follows: “Subject to adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay Term Loan Borrowings on the last day of each March, June, September and December (commencing on December 31, 2014) in the principal amount of Term Loans equal to (i) in the case of any such repayment occurring on December 31, 2014, $4,026,473 and (ii) in the case of any such repayment occurring on or after March 31, 2015, $8,052,946; provided that if any such date is not a Business Day, such payment shall be made under this Agreement by due on the next preceding Business Day.”
(c) Subject to the terms and conditions set forth herein, pursuant to Section 2.20 of the Credit Agreement, and effective as of the Amendment Effective Date, for all purposes of the Loan Documents, (i) the Incremental Term Lenders Commitments shall constitute a Term Commitment Increase established, and the Incremental Term Loans made hereunder shall constitute an increase in the aggregate amount of the Existing Term Loans incurred, in accordance with Section 2.20 of the Credit Agreement (as amended by this Amendment), (ii) the Incremental Term Commitments shall be “Commitments” under the Credit Agreement, (iii) the Incremental Term Loans made pursuant to one the Incremental Term Commitments shall be “Term Loans” under the Credit Agreement and shall constitute Loans of the same Class as the Existing Term Loans, (iv) Borrowings of the Incremental Term Loans shall constitute “Term Loan Borrowings” under the Credit Agreement, including for purposes of repayments due in respect of Term Loan Borrowings under Section 2.10 of the Credit Agreement, and (v) each Incremental Term Lender shall be a “Lender” and a “Term Lender” under the Credit Agreement, shall be a party to the Credit Agreement as a Lender and a Term Lender, shall have all the rights and obligations of, and benefits accruing to, a Lender and a Term Lender under the Credit Agreement and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Term Lenders. Without limiting the foregoing, the Incremental Term Loans made hereunder shall mature on the Term Maturity Date, shall participate in any mandatory or more voluntary prepayments on a pro rata basis with the Existing Term Loans and, subject to paragraph (d) of this Section, shall bear interest at the rate specified in the Credit Agreement as applicable to the Existing Term Loans. Each reference to the Credit Agreement in this paragraph (c) shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
(d) It is the intent of the parties to this Amendment that all Incremental Term Loans made on the Amendment Effective Date be included in each outstanding Borrowing of Existing Term Loans on a pro rata basis. In furtherance of the foregoing, each of the parties hereto agrees that a portion of each Incremental Term Loan Agreements. Such notice shall be allocated to each outstanding Borrowing of Existing Term Loans on a pro rata basis and that the Administrative Agent shall set forth the date on which interest rate applicable to each such Incremental Term Loans are requested Loan allocated to be made (which shall not be less than three (3) Business Days nor more than 60 days after a Eurocurrency Borrowing for the date of such notice (which time periods may be modified or waived at the discretion remainder of the Administrative Agent)existing Interest Period applicable to such Borrowing shall equal the Adjusted LIBO Rate applicable on the Amendment Effective Date to the Existing Term Loans included in such Borrowing plus the Applicable Rate. Subject to the proviso to Section 2.13(d)(ii) and include of the applicable completed Incremental Term Loan Agreement for such Credit Agreement, accrued interest on the portion of the Incremental Term Loans as an attachment theretoincluded in each Borrowing of the Existing Term Loans pursuant to this paragraph shall be payable in arrears on each Interest Payment Date applicable to such Borrowing; provided that, notwithstanding anything to the contrary contained herein above, any conversion or in continuation of any Incremental Borrowing of Term Loan Agreement, such Loans (including the Incremental Term Loans shall mature on included therein), and the Maturity Dateelection of any Interest Period therefor, shall not require occurring prior to the end of any mandatory prepayments thereof and shall not amortize. In connection with any existing Interest Period applicable to such request, the consent Borrowing as of the Administrative Agent Amendment Effective Date shall be required allocated ratably among the Lenders holding all Term Loans (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an including the Incremental Term Loan pursuant to Loans) included in such request) is required to be obtainedBorrowing.
(be) Any such The funding of the Incremental Term Loans to be made hereunder shall be made, at made in the option manner contemplated by Section 2.06 of the BorrowerCredit Agreement. Unless previously terminated, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “the Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible AssigneeCommitments shall terminate at 5:00 p.m., (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by New York City time, on the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term LoanAmendment Effective Date.
(cf) The Borrower Administrative Agent hereby consents to this Amendment and confirms that each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver not already a Lender under the Credit Agreement immediately prior to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Amendment Effective Date is acceptable to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Term Lenders pursuant to Loan Amount in the aggregate from one or more Incremental Term Lenders, all of which must meet the requirements for assignees of Term Loans and Term Loan AgreementsCommitments under Section 9.6(d). Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the unused portion of the Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made become effective (which shall not be less than three (3) 10 Business Days nor more than 60 days after the date of such notice notice), and (which time periods may be modified or waived at the discretion of the Administrative Agent)iii) and include the applicable completed whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term 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 Term Loan Assumption Agreement for and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as an attachment thereto; applicable, except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term other Loan AgreementDocument, such the Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof constitute Obligations hereunder and shall not amortizebe secured by the Collateral on a pari passu basis with all other Obligations). In connection with any such request, Without the prior written consent of the Administrative Agent shall be required Required Lenders, (such consent not to be unreasonably withheld, conditioned or delayed), but no consent i) the final maturity date of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Other Term Loans shall be madeno earlier than the Latest Maturity Date, at (ii) the option Weighted Average Life to Maturity of the BorrowerOther Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity, (iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors, (iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d) and (v) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) one or more existing Lenders and/or the margin above the Eurodollar Rate on such Other Term Loans and (y) one if such Other Term Loans are initially made at a discount or more financial institutions that is not an existing Lender the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (any the amount of such Lender discount or financial institution fee, expressed as a percentage of the Other Term Loans, being referred to in this Section 2.17(b) being called an herein as “Incremental Term LenderOID”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such non-existing differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are Eurodollar 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 Tranche A Term Loans and Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender or financial institution (A) must be an Eligible Assignee, (B) must have an as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of at least $5,000,000 unless otherwise agreed the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to by the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under may revise this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide evidence such Incremental Term Loanamendments.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitment shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
2.32 unless on the date of such effectiveness, (i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii4.2(a) the Borrower and 4.2(b) shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 3.50 to 1.00 as of the Collateral Documents or most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any amendments thereto that other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall deem have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably necessaryrequested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.1, signed(iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments and (v) the terms and documentation in respect of such Incremental Term Loan Commitments, to the extent applicablenot consistent with this Agreement, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance be reasonably satisfactory to the Administrative Agent;.
(ivd) Each of the parties hereto hereby agrees that the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably requestmay, in each case in form consultation with the Borrower, take any and substance all action as may be reasonably satisfactory necessary to the Administrative Agent; and
(v) to the extent requested by any ensure that all Incremental Term Lender making an Loans (other than Other Term Loans), when originally made, are included in each borrowing hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, the Borrower shall have executed and delivered or by allocating a portion of each Incremental Term Notes Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in favor the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, required to be made after the making of such Incremental Term Lenders evidencing Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansLoans and shall 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
Appears in 1 contract
Sources: Credit Agreement (B&G Foods, Inc.)
Incremental Term Loans. In addition to Borrowings of Revolving Credit Loans and Tranche B Term Loans pursuant to paragraphs (a) The Borrower shall have the right and (b) above, at any time and from time to time during the term of this Agreement, and subject prior to the terms and conditions set forth in this Section 2.17Term Loan Maturity Date, the Borrower may request that one or more Persons (which may include the Lenders) offer to request in writing incremental enter into commitments to make term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which each such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained loan being herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term LenderLoan”) under this paragraph (c); provided , it being understood that if such offer is to be made by any such non-existing Person that is not already a Lender or financial institution (A) must be an Eligible Assigneehereunder, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and shall have consented to such Person being a Lender hereunder to the Borrower and (Cextent such consent would be required pursuant to Section 9.04(b) must become an Incremental Term Lender under this Agreement by execution and delivery in the event of an Incremental Term Loan Agreement; provided, further, assignment to such Person. In the event that no Lender shall be required to become an Incremental Term Lender and any Lender one or financial institution approached to provide an Incremental Term Loan may elect or declinemore of such Persons offer, in its their sole discretion, to provide enter into such Incremental Term Loan.
commitments, and such Persons and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Persons making such offers and the fees (cif any) The to be payable by the Borrower in connection therewith and each Incremental Term Lender that has agreed the amortization and maturity date to provide an Incremental Term Loan pursuant to be applicable thereto, the Borrower, such request Persons and the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement. The Incremental Term Loans to be made pursuant to any such agreement between the Borrower and one or more Lenders in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term 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, (ii) the aggregate principal amount of all Incremental Term Loan Commitments and Incremental Term Loans, together with any Permitted Indebtedness incurred in accordance with Section 6.07(a)(A) after the Effective Date, shall not exceed $300,000,000 or such higher amount to which the Required Lenders shall have consented, (iii) the final maturity for the Incremental Term Loans of any Series shall not be earlier than the Term Loan Maturity Date for Tranche B Term Loans, (iv) the weighted average life to maturity (determined in a manner satisfactory to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as Agent) of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or any Series at the time of the making thereof shall not be shorter than the then-remaining weighted average life to maturity (so determined) of the proposed Tranche B Term Loans and (v) except for the amortization and interest rate to be applicable thereto, and any fees to be paid in connection therewith, the Incremental Term Loans of any Series shall have the same terms as the Tranche B Term Loans, provided that in no event shall the sum of the aggregate amount of Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth , the aggregate amount of increases in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required Revolving Credit Commitments effected pursuant to Section 6.10 hereof 2.06(e) and the Administrative Agent aggregate amount of Permitted Indebtedness incurred in accordance with Section 6.07(a)(A), together with the aggregate amount of Indebtedness incurred pursuant to Section 5(b) of the Pledge Agreement, exceed $300,000,000 or such higher amount to which the Required Lenders shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansconsented.
Appears in 1 contract
Sources: Credit Agreement (Oak Ridger LLC)
Incremental Term Loans. (a) The Borrower shall have may on any date on or after the right from time to time during the term of this AgreementRestatement Effective Date, and subject by notice to the terms and conditions set forth in this Section 2.17Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), to request in writing increase the Additional Term Loans hereunder with incremental term loans (the “"Incremental Term Loans”") be made under this Agreement by Incremental Term Lenders pursuant in an amount not to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived exceed $200,000,000; provided that at the discretion time of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in effectiveness of any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution Amendment referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assigneebelow, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(ia) no Default or Event of Default shall exist at the time of the request have occurred and be continuing on such date or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, after giving effect to the extent applicableextensions of credit to be made on such date, by (b) each of the parties thereto representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (orexcept where such representations and warranties expressly relate to an earlier date, in the which case of any party as to which an executed counterpart such representations and warranties shall not have been received, receipt by the Administrative Agent true and correct in all material respects as of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form earlier date) and substance reasonably satisfactory to the Administrative Agent;
(ivc) the Administrative Agent shall have received customary legal opinionsa certificate to that effect dated such date and executed by a Financial Officer of the Borrower. Incremental Term Loans may be made by any existing Lender or by any other financial institution or any fund that regularly invests in bank loans selected by the Borrower (any such other financial institution or fund being called an "Incremental Lender"), resolutions provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender's or Incremental Lender's making such Incremental Term Loans if such consent would be required under Section 9.6 for an assignment of Loans to such Lender or Incremental Lender. Commitments in respect of Incremental Term Loans shall be made pursuant to an amendment (an "Incremental Term Loan Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Term Loans, if any, each Incremental Lender, if any, and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) . Any Incremental Term Loans made hereunder shall be deemed "Additional Term Loans" hereunder and shall be subject to the extent requested by same terms and conditions applicable to the existing Additional Term Loans. No Lender shall be obligated to provide any Incremental Term Lender making an Loans, unless it so agrees. On the date of any borrowing of Incremental Term LoanLoans, the Borrower shall be deemed to have executed repaid and delivered Incremental Term Notes in favor reborrowed all outstanding Loans as of such Incremental Term Lenders evidencing date (with such Incremental Term reborrowing to consist of the Types of Loans, with related Interest Periods if applicable, specified in a notice to the Administrative Agent (which notice must be received by the Administrative Agent in accordance with the terms of this Agreement). The deemed payments made pursuant to the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.14 if the deemed payment occurs other than on the last day of the related Interest Periods.
Appears in 1 contract
Sources: Credit Agreement (Visteon Corp)
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject On or prior to the terms and conditions set forth in this Section 2.17last ----------------------- day of the Tranche A Commitment Period, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrower may, by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent (which shall set forth promptly deliver a copy to each of the date on which Lenders), request the addition of a new tranche of term loans (the "Incremental Term Loans"); provided, however, that both (x) at the time of ----------------------- -------- ------- any such request and (y) after giving effect to any such Incremental Term Loans are requested Loans, no Default shall exist and the Borrower shall be in compliance with each financial covenant (calculated, in the case of clause (y), on a pro forma basis to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date give effect to any borrowing of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Loans). The Incremental Term Loans as shall (i) be in an attachment theretoaggregate principal amount not in excess of $25,000,000, (ii) rank pari passu in right of payment and ---- ----- of security with the other Loans, (iii) have an average weighted life equal to or longer than the Tranche A Term Loans, (iv) be drawn on or prior to the last day of the Tranche A Commitment Period; provided that, -------- notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreementset forth herein, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be madedrawn until the Additional Financing Event Condition shall have been satisfied, at (v) have such pricing as may be agreed by the option of Borrower and the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any Persons providing such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution Loans and (Avi) must otherwise be an Eligible Assignee, (B) must have an treated hereunder no more favorably than the Tranche A Term Loans. Such notice shall set forth the requested amount of Incremental Term Loan Loans, and shall offer each Lender the opportunity to offer a commitment (the "Incremental Commitment") to provide Incremental Term Loans ---------------------- by giving written notice of at least $5,000,000 unless otherwise agreed such offered commitment to by the Administrative Agent and the Borrower and within a time period (Cthe "Offer Period") must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreementto be ------------ specified in the Borrower's notice; provided, furtherhowever, that no existing -------- ------- Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount less than the total amount of the Incremental Term Loans requested by the Borrower, the Borrower shall have the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide Incremental Term ----------------- Loans in an aggregate amount equal to the unsubscribed amount; provided -------- that each Additional Lender shall be required subject to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the approval of the Administrative Agent an (which approval shall not be unreasonably withheld); and provided further that the Additional Lenders shall be offered the ---------------- opportunity to provide the Incremental Term Loan Agreement and such other documentation as Loans only on terms previously offered to the Administrative Agent shall reasonably specify existing Lenders pursuant to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no immediately preceding sentence. Commitments in respect of Incremental Term Loans shall be provided become Commitments under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time Agreement pursuant to an Incremental Facility Amendment executed by each of the request or at Borrower, Holdings, each Subsidiary that is party to a Subsidiary Guarantee, if any, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the time Administrative Agent. The effectiveness of any Incremental Facility Amendment shall be subject to (A) the satisfaction on the date thereof and, if different, on the date on which the Incremental Term Loans are made, of each of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
6.3 and (iiiB) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphicopinions of counsel to the Borrower, telecopyaddressed to the Lenders and the Administrative Agent and dated the date of the Incremental Facility Amendment, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party)counsel, in each case and in form and substance reasonably substance, satisfactory to the Administrative Agent;.
(ivf) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
A new clause (v) to is inserted immediately after the extent requested by any Incremental Term Lender making an Incremental Term Loan, word "excluding," and immediately before clause (w) in the Borrower parenthetical phrase in Section 4.4(b)(i) and shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.read as follows: "
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement may by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such written notice to the Administrative Agent elect to request the establishment of one or more New Tranche B Term Loan commitments (the “New Tranche B Term Loan Commitments”), in an aggregate amount for all such New Tranche B Term Loan Commitments not in excess of $300,000,000. Each such notice shall set forth specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Tranche B Term Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans are requested notice is delivered to be made (which Administrative Agent; provided that the Borrower shall not be less than three (3) Business Days nor more than 60 days after first offer the date of such notice (which time periods may be modified or waived at the discretion Lenders to provide all of the Administrative Agent)) and include the applicable completed Incremental New Tranche B Term Loan Agreement for such Incremental Term Loans as Commitments prior to offering any other Person that is an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan eligible assignee pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”13.6(b); provided further that any such non-existing Lender offered or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental all or a portion of the New Tranche B Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental a New Tranche B Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Commitment. Such New Tranche B Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement Commitments shall become effective and no Incremental Term Loans shall be as of such Increased Amount Date; provided under this Section 2.17 unless:
that (i1) no Default or Event of Default shall exist at the time of the request on such Increased Amount Date before or at the time of after giving effect to such New Tranche B Term Loan Commitments and to the making of any Series of New Tranche B Term Loans pursuant thereto, as applicable; (2) both before and after giving effect to the proposed Incremental making of any Series of New Tranche B Term Loans;
(ii) all , each of the conditions precedent for a Borrowing set forth in Section 4.02 7 shall be satisfied; (3) Holdings, the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the covenants set forth in Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Tranche B Term Loan Commitments and any Investment to be consummated in connection therewith; (4) the New Tranche B Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Tranche B Loan Lenders, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(b); (5) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Tranche B Term Loan Commitments, as applicable; and (6) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Tranche B Term Loans made on an Increased Amount Date that have been satisfied;
terms and provisions that differ from Tranche B Term Loans outstanding on the date on which such New Tranche B Term Loans are made shall be designated as a separate series (a “Series”) of Tranche B Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Tranche B Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Tranche B Term Loan Commitment (each, a “New Tranche B Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Tranche B Term Loans of such Series made pursuant thereto. The terms and provisions of the New Tranche B Term Loans and New Tranche B Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans; provided, however, that (i) the applicable New Tranche B Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the Tranche B Term Loans , (ii) the average life to maturity of any New Tranche B Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) the rate of interest applicable to the New Term Tranche B Term Loans of each Series and, subject to the foregoing clause (ii) the schedule of required repayments of principal thereof, shall be determined by the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent applicable new Lenders and shall have received copies be set forth in each applicable Joinder Agreement. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the Collateral other Credit Documents as may be necessary or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (orappropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , to effect the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provision of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section 2.15.
Appears in 1 contract
Sources: Credit Agreement (Jostens IH Corp.)
Incremental Term Loans. (a) The Borrower shall have the right and any one or more Lenders (including New Lenders) may from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term agree that such Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which such make Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) by executing and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver delivering to the Administrative Agent an Incremental Term Loan Agreement and Facility Activation Notice specifying (i) the amount of such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
, (dii) Notwithstanding the foregoing, no applicable Incremental Term Loan Agreement Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall become effective and no comply with Section 2.08(b), (v) the New Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be provided under this Section 2.17 unless:
applied to the installments thereof, and (iviii) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed any other terms applicable to such Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) Loans acceptable to the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent that are consistent with the terms of this Section 2.02 and Section 2.08(b). Notwithstanding the foregoing, (1) unless otherwise agreed by the Required Lenders, (A) the aggregate amount of borrowings of Incremental Term Loans shall not exceed $1,000,000,000 and (B) no Incremental Term Loans may be borrowed if a Default would be in existence after giving pro forma effect thereto and any substantially concurrent use of the proceeds thereof and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Closing Dates may be selected by the Borrower after the Restatement Effective Date. No Lender shall have received copies any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Collateral Documents or any amendments thereto that Borrower and the Administrative Agent (which consent shall deem reasonably necessarynot be unreasonably withheld), signedelects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent applicable, as if originally a party hereto and shall be bound by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory entitled to the Administrative Agent;
(iv) benefits of this Agreement and the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansCredit Documents.
Appears in 1 contract
Incremental Term Loans. the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.03). 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 the Borrower pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods. The Incremental Term Loans (a) The Borrower shall have rank pari passu in right of payment with the right from time to time during Revolving Loans, (b) shall not mature earlier than the term of this Agreement, and subject to the terms and conditions set forth latest Maturity Date in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth effect on the date on which of incurrence of such Incremental Term Loans are requested (but may have amortization prior to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)date) and include (c) shall have terms as agreed between the applicable completed Incremental Term Loan Agreement for Borrower and the Lenders providing such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent; and
provided that (vi) the terms and conditions applicable to the extent requested by any tranche of Incremental Term Lender making an Incremental Term Loan, Loans maturing after the Borrower shall have executed and delivered Incremental Term Notes latest Maturity Date in favor effect on the date of incurrence of such Incremental Term Lenders evidencing Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”: (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term-1 Loans; (ii) shall mature on such date and amortize on such schedule as each may be made under this Agreement agreed by the Borrower and the Lenders providing such Incremental Term Lenders pursuant to one or more Loan, provided that no Incremental Term Loan Agreements. Such notice shall mature earlier than the Term-1 Loan Maturity Date and each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the Administrative Agent shall then remaining Weighted Average Life to Maturity of the Term-1 Loans; (iii) except as set forth above, shall be treated substantially the date on which same as the Term-1 Loans (in each case, including with respect to mandatory and voluntary prepayments); (iv) shall bear a rate of interest, OID (as defined below) and initial fees as agreed by the Borrower and the Lenders providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after Loan, provided that if the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in initial yield on any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to as reasonably determined by the Administrative Agent and the Borrower and to be equal to the sum of (Cx) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide the margin above the LIBO Rate on such Incremental Term Loan.
Loans, (cy) The Borrower and each if such Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver 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 but excluding any arrangement fees not paid to the Administrative Agent an Incremental Term Loan Agreement Lenders thereof generally, underwriting, documentation and similar fees and (the amount of such other documentation discount or fee, expressed as a percentage of the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
, being referred to herein as “OID”), the amount of such OID (dbased on an assumed four year weighted average life) Notwithstanding the foregoing, no and (z) any minimum LIBO rate applicable to such Incremental Term Loan Agreement Loans, the “Incremental Yield”) exceeds the initial yield on the Term Loans-1 Loans (as adjusted by any prior increase pursuant to this subclause (b)) by more than 50 basis points (taking into account the same factors in making the determination of the yield on the Incremental Term Loans and assuming a weighted average life of four years; the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate then in effect for Term-1 Loans shall become automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans; and no (v) except as provided in clauses (ii) and (iv) above, the terms and conditions applicable to Incremental Term Loans shall not be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at materially more restrictive on the time Borrower than those of the request or at Term-1 Loans. Subject to the time limitations in this clause (b) and any applicable limitations in Section 6.10, Incremental Term Loans may be issued in exchange for other Indebtedness of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loansits Restricted Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Solutia Inc)
Incremental Term Loans. (a) The Borrower shall have the right may, at any time and from time to time during after the term of this AgreementClosing Date, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans one or more new commitments which may be of the same Class as any outstanding Term Loan (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”). Any request under this Section 2.12 shall specify the requested amount and proposed terms of the relevant Incremental Term Loans”) . Incremental Term Loans may be made under this Agreement by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment, nor will the Borrower have any obligation to approach any existing Lenders pursuant to one or more provide any Incremental Term Loan Agreements. Such notice to the Administrative Agent shall set forth the date on which Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided thatCommitment, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender’s making such Incremental Term Loans to the extent such consent, if any, would be required under Section 11.6(b)(iii) for an assignment of Term Loans to such Additional Lender.
(b) Notwithstanding anything to the contrary herein, without the prior written consent of the Required Lenders, the aggregate principal amount of Incremental Term Loans shall not exceed at the time Incurred, the sum of (i) (any such non-existing Lender or financial institution Incremental Term Loans and any Incremental Equivalent Debt, in each case, to the extent Incurred under this clause (i), “Dollar Basket Incremental Debt”) the greater of (A) must be an Eligible Assignee, $200,000,000 and (B) must 100.0% of the amount of EBITDA for the most recent four (4) consecutive Fiscal Quarters for which financial statements of the Borrower have been delivered hereunder, less the aggregate outstanding principal amount of all Incremental Term Loans and Incremental Equivalent Debt established prior to such time to the extent constituting Dollar Basket Incremental Debt; plus (ii) an additional amount (any such Incremental Term Loans and any Incremental Equivalent Debt, in each case, to the extent Incurred under this clause (ii), “Ratio-Based Incremental Debt”), so long as, in the case of this clause (ii), upon the effectiveness of the applicable Incremental Term Amendment or the relevant documentation relating to the relevant Incremental Equivalent Debt, as the case may be, and after giving effect to any such Incurrence on a pro forma basis (and after giving effect to any acquisition or other Investment consummated in connection therewith on a pro forma basis), the Consolidated Secured Leverage Ratio is no greater than 3.00 to 1.00; provided that solely for purposes of calculating the Consolidated Secured Leverage Ratio for purposes of permitting the Incurrence of such Ratio-Based Incremental Debt (x) the Consolidated Secured Leverage Ratio shall be determined without netting the proceeds from the Incurrence of such Ratio-Based Incremental Debt and (y) any Incremental Term Loans and Incremental Equivalent Debt (or any Refinancing Indebtedness in respect thereof) that is or contemplated to be junior in right of security with outstanding Initial Term Loans or unsecured shall be deemed to be secured on a pari passu basis with the outstanding Initial Term Loans; plus (iii) the aggregate amount of all voluntary prepayments of any Term Loans, Incremental Term Loans and/or Incremental Equivalent Debt, that, in each case, is secured on a pari passu basis with the Term Loans (provided that such prepayment is not funded with a concurrent Incurrence of Long-Term Indebtedness (other than loans under the ABL Agreement or loans under any other revolving credit facility)), less the aggregate outstanding principal amount of all Incremental Term Loans and Incremental Equivalent Debt established prior to such time pursuant to this clause (iii). The Borrower shall be entitled to elect to use clause (ii) above, before using clause (i) or (iii) above, to the extent permitted thereby; provided that, unless elected otherwise by the Borrower, any Incremental Term Loans and any Incremental Equivalent Debt shall be deemed to have been Incurred first in reliance on clause (ii) above to the extent permitted thereby.
(c) On any date on which any Incremental Term Commitments of any Class are effected (including through any Term Loan Increase) (each such date an “Incremental Tranche Closing Date”), subject to the satisfaction of the terms and conditions in this Section 2.12 (i) each Incremental Term Lender of such Class shall make a Term Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Class and (ii) 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.
(d) The terms, provisions and documentation of any Incremental Term Loan or any Incremental Term Commitment shall be as agreed between the Borrower and the applicable Incremental Term Lenders providing such Incremental Term Loans or Incremental Term Commitments, and except as otherwise set forth herein, to the extent not substantially consistent with any Class of at least $5,000,000 unless Term Loans existing on the Incremental Tranche Closing Date (as determined by the Borrower), shall be consistent with clauses (i) through (iii) below, as applicable, and otherwise agreed shall be reasonably satisfactory to by the Administrative Agent (in its capacity as such) (other than in respect of pricing, fees, rate floors, amortization or maturity); provided that terms that are not substantially consistent with any Class of Term Loans existing on the Incremental Tranche Closing Date may be added without the consent of the Administrative Agent or any existing Lender to the extent such terms are (x) also added for the benefit of the Term Loans existing on the Incremental Tranche Closing Date or (y) only applicable after the Maturity Date of any Term Loans existing on the Incremental Tranche Closing Date. Notwithstanding the foregoing, in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be identical (other than with respect to underwriting, commitment or upfront fees, original issue discount or similar fees) to the applicable Term Loans being increased. In any event,
(i) each Incremental Term Loan or Incremental Term Commitment:
(A) at the Borrower’s option, may rank pari passu or junior in right of payment with the other Term Loans or Commitments, as applicable, of such Class, may be pari passu or junior in right of security with the other Term Loans or Commitments, as applicable, of such Class (and, if junior in right of security, subject to an Acceptable Intercreditor Agreement) or may be unsecured;
(B) shall not mature earlier than the Maturity Date with respect to the Initial Term Loans;
(C) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans on the date of Incurrence of such Incremental Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such Incurrence);
(D) shall have fees and, subject to clauses (d)(i)(B) and (d)(i)(C) above, amortization determined by the Borrower and (C) must become an the applicable Incremental Term Lender under this Agreement by execution and delivery Lenders; and
(E) may, in the case of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an or Incremental Term Lender Commitment that is pari passu in right of payment and any Lender or financial institution approached to provide an Incremental right of security with the Initial Term Loan may elect or declineLoans, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term LoansAmendment;
(ii) all conditions precedent for a Borrowing the All-In-Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in Section 4.02 have been satisfied;each applicable Incremental Term Amendment; provided, however, that the All-In-Yield applicable to any such Incremental Term Loans that has a scheduled maturity date earlier than twelve months after the Maturity Date, shall not be greater than the applicable All-In-Yield payable pursuant to the terms of this Agreement with respect to the Initial Term Loans plus 50 basis points per annum, unless the Interest Rate (together with, as provided in the proviso below, the Eurodollar Rate or Base Rate floor) with respect to such Initial Term Loans is increased so as to cause the then applicable All-In-Yield under this Agreement on such Initial Term Loans to equal the All-In-Yield then applicable to the Incremental Term Loans minus 50 basis points; provided that any increase in All-In-Yield to the Initial Term Loans due to the application of any Eurodollar Rate floor or Base Rate floor on any Incremental Term Loan shall be effected solely through an increase in (or implementation of, as applicable) any Eurodollar Rate floor or Base Rate floor applicable to the Initial Term Loans; and
(iii) there shall be no guarantors in respect of such Incremental Term Loans that are not Guarantors and such Incremental Term Loans shall not include any borrower other than the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signedand, to the extent applicablesecured, by each of the parties thereto (or, in the case of any party as to which an executed counterpart Incremental Term Loans shall not have been received, receipt be secured by the Administrative Agent of telegraphic, telecopy, electronic communication assets other than Collateral (except pursuant to an escrow or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory similar arrangement with respect to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor proceeds of such Incremental Term Lenders evidencing such Incremental Term Loans).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Incremental Term Loans. (a) The Borrower shall have may, by written notice to the right Administrative Agent from time to time during the term of this Agreementtime, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Loan Commitments in an amount not to exceed the Incremental Amount available at the time such Incremental Term Lenders pursuant Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) from one or more Incremental Term Loan AgreementsLenders (which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans in their sole discretion. Such notice to the Administrative Agent shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the date on which such Incremental Term Loans Loan Commitments are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtainedbecome effective.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to provide for evidence the requested Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be ; provided under this Section 2.17 unlessthat:
(i) no Default or Event of Default the Incremental Loans shall exist at the time not be guaranteed by any subsidiaries of the request or at Borrower that do not guarantee the time of Obligations and shall be secured on a pari passu basis by the making of same Collateral (and no additional Collateral) securing the proposed Obligations and any Incremental Term Loans;
Facility shall have the same payment priority as the Term B Facility, (ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iiia) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies scheduled final maturity date of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Facility shall be no earlier than the Term B Maturity Date and (b) the Weighted Average Life to Maturity of any Incremental Term Loan, Facility shall be no shorter than the Borrower shall have executed and delivered Incremental remaining Weighted Average Life to Maturity of the Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.B Facility,
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right At any time and from time to time during prior to December 31, 2006, the Borrower may request one or more additional term of this Agreementloan facilities, and subject to in accordance with the terms and conditions procedures set forth in this Section 2.17Sections 2.20(b) and 2.20(c). Each loan to be made under any such additional facility is referred to herein as an “Incremental Term Loan” and, to request in writing incremental term loans (collectively, as the “Incremental Term Loans”) be made under this Agreement by .” All Incremental Term Lenders pursuant Loans made on the same day shall be deemed to one or more be a separate “Series” of Incremental Term Loan AgreementsLoans. Such notice The aggregate principal amount of the Incremental Term Loans made hereunder shall not exceed $75,000,000 (without regard to the Administrative Agent shall set forth the date on which any repayment of such Incremental Term Loans). The initial aggregate principal amount of all Incremental Term Loans are requested to be made (which of the same Series shall not be less than three $10,000,000 (3or, if less, in an amount equal to $75,000,000 minus the aggregate principal amount of Incremental Term Loans previously made pursuant to this Section 2.20). The Incremental Term Loans of any Series shall:
(i) Business Days nor more than 60 days after upon the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Effective Date relating to such Series, constitute part of, and be added to, the Tranche B Term Loans (and the Incremental Term Lenders of such Series shall become Tranche B Lenders) for all purposes under this Agreement and the other Credit Documents, including for purposes of the sharing of Collateral and guarantees under the Security Documents all on a pari passu basis with all other Obligations;
(ii) be issued at par without any original issue discount;
(iii) bear interest at the same rates applicable to the Tranche B Term Loans or have such other pricing as may be agreed by the Borrower, the Administrative Agent and the Incremental Term Lenders of such Series; provided, however, that if the margins to be added to the Base Rate or the LIBOR Rate for any Series of Incremental Term Loans are greater than the margins set forth for Tranche B Term Loans in the definition of “Applicable Margin Percentage” contained in Section 1.1, the Applicable Margin Percentages for outstanding Tranche B Term Loans shall automatically be increased to any extent required so that the margin or margins applicable thereto are equal to the margin for such Series of Incremental Term Loans, without any action or consent of the Borrower, the Administrative Agent or any Lender; and
(iv) require amortization payments on the same dates and in an amount which shall be the same (on a proportionate basis) as an attachment theretoare thereafter required with respect to the Tranche B Term Loans under Section 2.6(b) (as such amounts may have been previously adjusted in accordance with the terms of this Agreement as a result of prior prepayments on the Term Loans, including adjustments made pursuant to Section 2.6(g) or Section 2.7(b)).
(b) If the Borrower desires to incur a Series of Incremental Term Loans, the Borrower shall request of each Lender that it fund all or any portion of such Series of Incremental Term Loans up to a stated maximum aggregate principal amount and at proposed interest rates and fees for such Series of Incremental Term Loans set forth in such request (provided that such terms shall be in accordance with this Section 2.20, and provided further that the Borrower shall, concurrently with such request, notify the Administrative Agent of such request). Any Lender may (but is not obligated to) fund all or any portion of the requested Series of Incremental Term Loans; provided that, notwithstanding anything to that any Lender that requests a portion of the contrary contained herein or in any applicable Incremental Term Loan AgreementCommitments equal to or greater than its pro rata share (based on outstanding Loans, such Letter of Credit Exposure and unutilized Commitments or, after the termination of the Revolving Credit Commitments, outstanding Loans and Letter of Credit Exposure) of the proposed Series of Incremental Term Loans shall mature receive no less than its pro rata share of such Incremental Term Loan Commitments. If the Lenders are not willing to provide all of the Series of Incremental Term Loans requested on the Maturity Dateproposed terms, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the written consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent the Borrower may request one or more Eligible Assignees to become a Lender hereunder and to fund all or any portion of any Lender (other than any Lender providing an the requested Series of Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Loans; provided that Incremental Term Loans to be made by any Eligible Assignee shall be in an aggregate principal amount acceptable to the Administrative Agent. If one or more Lenders or Eligible Assignees agree to provide the requested Series of Incremental Term Loans, the Borrower shall give written notice to the Administrative Agent specifying the aggregate amount of the Incremental Term Loans of such Series to be made, at the option amount of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed such Series to be made by each Lender or Eligible Assignee, the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an proposed Incremental Term Loan Agreement; providedEffective Date of such Series of Incremental Term Loans, furtherand the interest rates and fees payable with respect to such Series of Incremental Term Loans, that no Lender which terms shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, included in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and (provided that such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans terms shall be provided under in accordance with this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party2.20), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The After the Closing Date, the Borrower shall have the right may from time to time during request that additional term loans be made to it in accordance with this Section 2.1(g) (each, an “Incremental Term Loan”) by delivering a Notice of Incremental Term Loan Borrowing to the term of this AgreementAdministrative Agent, and specifying (subject to the terms and conditions restrictions set forth in this Section 2.17, to request in writing incremental term loans 2.1(g)) therein (A) the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to amount of the Administrative Agent shall set forth the date on which such Tranche of Incremental Term Loans are requested to be made (which Tranche shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything in a minimum principal amount equal to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent lesser of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or $20,000,000 and (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred the then current Incremental Amount, and, subject to the first sentence of Section 2.1(g)(iii), in this Section 2.17(b) being called an “Incremental Term Lender”integral multiples of $1,000,000 in excess thereof); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making advance date of the proposed Incremental Term Loans;
Loans comprising such Tranche (iiwhich shall be not less than ten (10) days from the date of delivery of the Notice of Incremental Term Loan Borrowing (or such shorter period of time as to which the Administrative Agent may agree in its sole discretion)), (C) the Interest Rate Option(s) and the Applicable Margin to be applicable to the Incremental Term Loans in such Tranche, (D) the amortization for all conditions precedent for a Borrowing set forth Incremental Term Loans in such Tranche and (E) the amount of any upfront or closing fees to be paid by the Borrower to the Lenders funding the Tranche of Incremental Term Loans requested. Subject to the last sentence in Section 4.02 have been satisfied;
(iii) 2.1(g)(v), each Notice of Incremental Term Loan Borrowing delivered by the Borrower shall have provided Incremental Term be irrevocable and shall be binding upon all Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term LoansParties.
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Incremental Term Loans. At any time and from time to time, the U.S. Borrower may request that the Lenders (or other financial institutions agreed to by the U.S. Borrower) offer to enter into commitments to make additional term loans (each such loan being herein called an “Incremental Term Loan”) under this Section 2.01(b). 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 U.S. Borrower agrees 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 U.S. Borrower in connection therewith, such Lenders (or financial institutions) shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Term Commitments. The U.S. Borrower, such Lenders (or financial institutions) and the Administrative Agent shall enter into an agreement effecting 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 paragraph (b) (each such agreement being herein called an “Incremental Term Loan Amendment”), without the consent of any Lender other than the Lenders providing such Incremental Term Loans. The Incremental Term Loans to be made pursuant to any Incremental Term Loan Amendment in response to any such request by the U.S. Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Agreement shall be construed to obligate any Lender to provide any Incremental Term Commitment or to obligate the U.S. Borrower to request an Incremental Term Commitment from any Lender. Incremental Term Loans will share in the Collateral under the Security Documents and the guarantees under the Guarantee Agreement to the same extent as the Term Loans. Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to Incremental Term Loans:
(i) the aggregate number of separate Series of Incremental Term Loans pursuant to all such requests hereunder shall not exceed five, and the minimum aggregate principal amount of Incremental Term Commitments of any Series entered into pursuant to any single such request (and, accordingly, the minimum aggregate principal amount of Incremental Term Loans of such Series) shall be at least equal to $10,000,000;
(ii) the aggregate principal amount of all Incremental Term Loan Commitments, all Incremental Revolving Facility Commitments and all outstanding Series of Incremental Term Loans (including any increase in Term Loans as provided in clause (v) below) shall not exceed the greater of (a) The Borrower $125,000,000 and (b) the greatest amount such that, immediately after giving effect to the incurrence of such Incremental Term Loan Commitments or Incremental Term Loans (and calculated as if all concurrently obtained Incremental Revolving Facility Commitments (if any) and Incremental Term Loan Commitments are fully drawn), the Senior Secured Leverage Ratio shall not be greater than 2.75:1.00 as of the date of incurrence of such Incremental Term Loan Commitments or Incremental Term Loans;
(iii) the maturity date for the Incremental Term Loans of any Series as specified in the Incremental Term Loan Amendment for such Series shall not be earlier than the Latest Maturity Date;
(a) the scheduled payments or repayments of principal of the Incremental Term Loans of any Series shall be as specified in the Incremental Term Loan Amendment for such Series (but Incremental Term Loans shall be entitled to participate in voluntary and mandatory prepayments on the same basis as existing Term Loans); and (b) the weighted average life to maturity of all Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of any other Incremental Term Loans or the Term Loans;
(v) any Series of Incremental Term Loans may be effected through an increase in the Term Loans, in which case (w) any Incremental Term Loan Lender not already a Term Lender hereunder shall become a Term Lender, (x) anything in Section 2.15(c) to the contrary notwithstanding, the initial Incremental Term Loans made under the respective Incremental Term Loan Amendment shall be made solely by the Incremental Term Loan Lenders executing such Incremental Term Loan Amendment (but thereafter the provisions of Section 2.15(c) shall be applicable to such Incremental Term Loans), (y) the initial Incremental Term Loans made under such Incremental Term Loan Amendment shall be either ABR Loans or Eurodollar Loans with an Interest Period ending on the last day of the earliest expiring then- outstanding Interest Period for Term Loans (so long as the same is at least one month after the date such Incremental Term Loans are made) and (z) as promptly as practicable following the making of such Incremental Term Loans (but in any event not later than the last day of such earliest-expiring then-outstanding Interest Period for Term Loans), such Incremental Term Loans shall be coordinated with all other Term Loans so that all outstanding Term Loans (including the portion thereof represented by Incremental Term Loans) of each Type are allocated ratably among the Term Lenders (including any Incremental Term Loan Lenders that have become Term Lenders) as required by Section 2.15(c);
(vi) the Margin for such Incremental Term Loans shall be the Margin set forth in the respective Incremental Term Loan Amendment; provided, that the Weighted Average Yield applicable to such Incremental Term Loans shall not be greater than the Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Term Loans or any other Series of Incremental Term Loan plus 0.50% per annum unless the interest rate with respect to the Term Loans or such other Incremental Term Loans is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Term Loans or such other Incremental Term Loans to equal the Weighted Average Yield then applicable to such Incremental Term Loans minus 0.50% per annum;
(vii) both before and after giving effect to the making of any Incremental Term Loans, the Parent and its Subsidiaries shall have demonstrated compliance on a Pro Forma Basis with each of the right from time financial covenants in Section 6.11;
(viii) the terms and provisions of the Incremental Term Commitments and the Incremental Term Loans shall be identical to time during the term Term Loans except as set forth in this Section 2.02(b) or as are reasonably acceptable to Administrative Agent;
(ix) following the acceptance by the U.S. Borrower of the offers made by any one or more Lenders to make any Series of Incremental Term Loans pursuant to the foregoing provisions of this Agreementparagraph (b), and each Incremental Term Loan Lender in respect of such Series of Incremental Term Loans severally agrees, subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “make such Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant Loans to one or more the U.S. Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the Incremental Term Loan AgreementsAmendment entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Term Commitment of such Incremental Term Loan Lender in respect of such Series as in effect from time to time. Such notice Thereafter, subject to the terms and conditions of this Agreement, the U.S. Borrower may convert Incremental Term Loans of such Series of one Type into Incremental Term Loans of such Series of another Type (as provided in Section 2.03) or continue Incremental Term Loans of such Series of one Type as Incremental Term Loans of such Series of the same Type (as provided in Section 2.03). Incremental Term Loans of any Series that are prepaid may not be reborrowed as Incremental Term Loans of the same Series;
(x) the Administrative Agent shall set forth notify the date on which such Lenders promptly upon receipt of the U.S. Borrower’s notice of each request for Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoCommitments; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.and
(bxi) Any such proceeds of Incremental Term Loans shall be made, at available for any use permitted under the option applicable provisions of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan5.10.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
Appears in 1 contract
Incremental Term Loans. (a) The Borrower shall have the right from time to time may on no more than two occasions during the period beginning on the Effective Date to and including the date that is six months prior to the Maturity Date, provided that no Qualified Acquisition Period is then in existence, enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of this Agreement$25,000,000 so long as, and after giving effect thereto, the aggregate amount of all such Incremental Term Loans does not exceed $100,000,000. The Borrower may arrange for any such tranche to be provided by one or more Lenders or new banks, financial institutions or other entities (each, an “Incremental Term Loan Lender”); provided that (i) each Incremental Term Loan Lender, if not already a Lender hereunder, shall be subject to the terms approval of the Administrative Agent (which approval shall not be unreasonably withheld) and conditions set forth in this Section 2.17, shall become a party to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice completing and delivering to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested a duly executed accession agreement in a form reasonably satisfactory to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent and the Borrower (an “Accession Agreement”) and (ii) no Lender shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no participate in any tranche of Incremental Term Loans. No consent of any Lender (other than the Lenders participating in any Lender providing an Incremental Term Loan) shall be required for any Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such this Section 2.20. Incremental Term Loans created pursuant to this Section 2.20 shall be made, at become effective on the option of date agreed by the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender Lenders and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify notify each Lender thereof. Upon the effectiveness of any Accession Agreement to provide for the requested which any Incremental Term Loans.
(d) Loan Lender is a party, such Incremental Term Loan Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Term Loan Lender hereunder and subject to all obligations of a Term Loan Lender hereunder. Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no tranche of Incremental Term Loans shall be provided become effective under this Section 2.17 unless:
, (i) no Default or Event of Default shall exist at on the time proposed date of the request or at the time effectiveness of the making of the proposed such Incremental Term Loans;
, (iiA) all the conditions precedent for a Borrowing set forth in paragraphs (a) and (b) of Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof be satisfied and the Administrative Agent shall have received copies a certificate to that effect dated such date and executed by a Financial Officer of the Collateral Documents or any amendments thereto that Borrower and (B) the Administrative Agent Borrower shall deem reasonably necessary, signed, be in compliance on a pro forma basis (giving effect to the extent applicable, by each use of proceeds of such Incremental Term Loan) with the parties thereto covenants contained in Section 6.12 and (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ivii) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation documents consistent with those delivered on the Effective Date as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, organizational power and authority of the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.to borrow such
Appears in 1 contract
Sources: Credit Agreement (Service Corporation International)
Incremental Term Loans. (a) The Borrower shall have the right At any time and from time to time during prior to the term of this AgreementMaturity Date, and subject to the terms and conditions set forth in this Section 2.17herein, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement Borrower may, by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of term loans (the "Incremental Term Loans"), provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom and (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth the date on which such Incremental Term Loans are requested to be made in clause (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative AgentA)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding . Notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreementherein, such the aggregate principal amount of the Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortizeexceed $50,000,000. In connection with any such request, the consent Each tranche of the Administrative Agent Incremental Term Loans shall be required (such consent in an aggregate principal amount that is not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other less than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained$25,000,000.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan. Any additional bank, financial institution, existing Lender or other Person that elects to make an Incremental Term Loan shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an "Additional Lender") and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. Commitments in respect of any Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender Commitments under this Agreement by execution and delivery Agreement. An Incremental Facility Amendment may, without the consent of an Incremental Term any other Lenders, effect such amendments to any Loan Agreement; provided, further, that no Lender shall Documents as may be required to become an Incremental Term Lender and any Lender necessary or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (orappropriate, in the case opinion of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) , to effect the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor provisions of such Incremental Term Lenders evidencing such Incremental Term Loansthis Section.
Appears in 1 contract
Sources: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Incremental Term Loans. The Borrowers and any one or more Lenders (a) The Borrower shall have including any Person not previously a Lender hereunder who executes and delivers a joinder agreement executed by the right from time Borrowers, the Administrative Agent and such Lender, in form and substance reasonably acceptable to time during the term each of this Agreementthem), and subject which Lenders are reasonably acceptable to the terms Administrative Agent, may agree, upon at least thirty (30) days’ prior notice to the Administrative Agent, that such Lenders shall make one or more additional term loan facilities available to the Borrowers under this clause (b) of Section 2.1.1 (each an “Incremental Term Loan Facility” and conditions set forth in this Section 2.17collectively, to request in writing incremental term the “Incremental Term Loan Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively, the “Incremental Term Loan Commitments”; and the loans (thereunder, each an “Incremental Term Loan” and collectively, the “Incremental Term Loans”) be made under this Agreement by Incremental on substantially the same terms and subject to substantially the same conditions as the Term Lenders pursuant to one or more Loans. Any Incremental Term Loan Agreements. Such notice to the Administrative Agent or Incremental Term Loan Commitment shall set be documented by an amendment or supplement to, or a restatement of, this Agreement, setting forth the date on specific terms and conditions of the Incremental Term Loan Facility, which amendment, supplement or restatement shall be signed by the Borrowers and the Lenders providing such Incremental Term Loans are requested to be made Loan Commitments. Notwithstanding the foregoing: (which i) the aggregate principal amount of all Incremental Term Loan Commitments shall not exceed the Maximum Incremental Amount; (ii) the Pro Forma Fixed Charge Coverage Ratio must not be less than three 1.05:1.00; (3iii) Business Days nor more than 60 days after the date Stated Maturity Date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental shall be after the later of the Stated Maturity Date for the Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Multi-Draw Term Loans.
; (d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(iiv) no Default or Event of Default shall exist at the time of the request have occurred and be continuing or at the time of the making of the proposed result after giving effect to any Incremental Term Loans;
Loan; (iiv) the Loan Parties shall be in compliance before and after giving effect to any Incremental Term Loan with all conditions precedent for a Borrowing covenants set forth in the Loan Documents, including the financial covenants set forth in Section 4.02 have been satisfied;
7.2.4; (iiivi) the Borrower shall have provided compliance with clauses (ii) and (v) (calculated after giving effect to any such Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent Loans) shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, be evidenced by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory Compliance Certificate delivered to the Administrative Agent;
; (ivvii) the proceeds of any Incremental Term Loan shall be used to acquire additional Domestic Real Property which will become Collateral hereunder subject to a first priority Lien and security interest in favor of the Administrative Agent, for the benefit of the Lender Parties; (viii) with respect to such Domestic Real Property to be acquired, the Administrative Agent and each Lender extending an Incremental Term Loan Commitment shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably approved an appraisal from American Forest Management or another nationally recognized forestry appraisal firm that is satisfactory to the Administrative Agent; and
(vix) the weighted average life of any Incremental Term Loan shall be equal to or greater than the greater of the remaining weighted average life of the Term Loans and the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan; (x) to the extent requested by any that the applicable interest rate margin on such Incremental Term Lender making an Loan exceed by more than 0.25% the applicable interest rate margin for the Multi-Draw Term Loans, determined as of the initial funding date for such Incremental Term Loan, the Borrower applicable interest rate margin for the Term Loans and the Multi-Draw Term Loans shall have executed be increased so that the applicable interest rate margin for the Multi-Draw Term Loans and delivered Incremental Term Notes in favor of for such Incremental Term Lenders evidencing Loan are equal, and the applicable interest rate margin on the Term Loans is not lower than the applicable interest rate margin on such Incremental Term Loan by more than the applicable interest rate margin for the Multi-Draw Term Loans exceeded the applicable interest rate margin for the Term Loan immediately prior to such Incremental Term Loan; (xi) any covenant or Event of Default applicable to any Incremental Term Loan that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to all Loans hereunder; and (xii) the aggregate of any original issue discount or upfront fees applicable to any such Incremental Term Loans shall not be more than 1% of the principal amount of such Incremental Term Loans.
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Incremental Term Loans. (ai) The Borrower Company may also utilize part or all of the Aggregate Incremental Capacity to obtain one or more incremental term loans (the “Incremental Term Loans”) as provided herein. Incremental Term Loans may be exchanged by the Company for any of the Company’s Existing Notes, or the cash proceeds of any Incremental Term Loans may be used to repurchase any of the Company’s Existing Notes, for working capital and other general corporate purposes. The Incremental Term Loans shall have constitute Secured Obligations subject to the right from time to time during the term provisions of this AgreementSections 7.03, 7.04 and 7.05 hereof. Each extension of Incremental Term Loans shall be subject to the terms and conditions set forth in this Section 2.172.23(c).
(ii) Each Incremental Term Loan shall be subject to the terms of this Agreement and each of the other Loan Documents and, to request the extent not specified or inconsistent with the terms and conditions set forth herein or therein, the terms and conditions applicable to each Incremental Term Loan shall be set forth in writing incremental term loans a separate amendment agreement (the each an “Incremental Term LoansLoan Amendment”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice to among the Administrative Company, the Agent shall set forth the date on which and each lender of such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Loan Lender”), which may, in the Borrower Agent’s sole discretion, include existing Lenders; provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached obligated to provide an any Incremental Term Loan may elect or declineas a result of any request by the Company. Unless otherwise agreed by the Required Lenders, in its sole discretion, to provide such Incremental Term Loan.
(cA) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans Amendment shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent (and the Agent shall not be required to seek the direction or consent of the Required Lenders for any such Incremental Term Loan Amendment to the extent such Incremental Term Loan Amendment is not inconsistent with the terms and conditions set forth herein), and (B) no Incremental Term Loan Amendment shall include (1) any terms or conditions of the Incremental Term Loans (other than interest rates and fees, maturity date, amortization (if any) and conditions to effectiveness) that are in conflict with any of the provisions of this Agreement, or (2) any additional covenants or Events of Default or provisions for mandatory prepayment not otherwise provided for herein; provided that such Incremental Term Loan Amendment may provide for assignments and transfers of Incremental Term Loans to third parties (other than any Loan Party, any Sponsor or any of their Affiliates) on terms and conditions other than those specified in Section 9.04 without the consent of the Required Lenders or any other Lender.
(iii) No extension of an Incremental Term Loan shall become effective unless and until each of the following conditions have been satisfied:
(A) the Company, the Agent, and each participating Incremental Term Loan Lender shall have executed and delivered an Incremental Term Loan Amendment and such other loan documentation as the Agent may reasonably require in connection therewith;
(ivB) the Administrative Agent Company shall have received customary legal paid such fees and other compensation to the Incremental Term Loan Lenders as the Company, the Agent and each such Incremental Term Loan Lender may agree;
(C) the Company shall have delivered to the Agent and the Incremental Term Loan Lenders and the other Lenders an opinion or opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and, from counsel to the Company reasonably satisfactory to the Agent (it being agreed that the counsel that delivers the legal opinions on the Effective Date shall be satisfactory to the Agent) and dated such date;
(vD) to the extent requested by any Incremental Term Loan Lender, a promissory note will be issued at the Company’s expense, to each such Incremental Term Loan Lender, to be in conformity with the requirements of Section 2.10 (with appropriate modification) to the extent necessary to reflect the Incremental Term Loans of such Incremental Term Loan Lender;
(E) the Company shall have delivered to the Agent (1) the resolutions adopted by the Company approving or consenting to such incurrence of Incremental Term Loans and (2) a certificate of a Responsible Officer of the Company to the effect that, after pro forma application of the extension of the requested Incremental Term Loans, (a) no Event of Default shall have occurred and be continuing, (b) the Company shall be in compliance with the requirements of Section 5.14 hereof (without regard to any Inventory Grace Period), and (c) Excess Availability shall be at least 15% of the lesser of (i) the aggregate Revolving Commitments and (ii) the Borrowing Base;
(F) no Incremental Term Loan shall by its terms be scheduled to mature or require any other payment of principal prior to the date that is at least 90 days after the Maturity Date; provided that Incremental Term Loans may be subject to quarterly scheduled payments of principal in an annual amount not to exceed 1% of the original principal amount of such Incremental Term Loans, with the balance payable at the maturity thereof and may be prepaid pursuant to Section 2.11(a) hereof; and
(G) the Company and the Incremental Term Loan Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably request.
(iv) The Agent shall promptly notify each Lender making an as to the effectiveness of each Incremental Term Loan, and at such time (A) the Borrower aggregate total Commitments under, and for all purposes of, this Agreement shall have executed and delivered Incremental Term Notes in favor be increased by the aggregate amount of such Incremental Term Lenders evidencing Loans, (B) the Commitment Schedule shall be deemed modified, without further action, to reflect the revised Incremental Term Loan Commitments of the Lenders, and (C) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect such increased aggregate total Commitments.
(v) The Company shall cancel and extinguish the Indebtedness under any Existing Notes repurchased with the proceeds of Incremental Term Loans.
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Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreementright, and subject upon at least ten Business Days’ prior written notice to the terms and conditions set forth in this Section 2.17Administrative Agent (who shall promptly notify the Lenders), to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to institute one or more Incremental Term Loans (as defined below) at any time prior to the date that is six months prior to the Maturity Date subject to the conditions set forth below:
(i) the aggregate original principal amount of all Incremental Term Loans made pursuant to this Section 2.6 and the aggregate amount of all increases in the Revolving Committed Amount made pursuant to Section 2.7, shall not, in the aggregate, exceed the Incremental Cap at the time such Incremental Term Loans are established;
(ii) the conditions set forth in Section 5.2 shall have been satisfied;
(iii) such requested Incremental Term Loan Agreements. Such notice to shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a corresponding amount of such requested Incremental Term Loan from either existing Lenders and/or one or more other institutions that qualify as an Eligible Assignee (excluding any Affiliate of a Lender) (it being understood and agreed that no existing Lender shall set forth be required to provide an additional commitment) and (B) any Incremental Term Loans shall share ratably in the Collateral and any mandatory prepayments of any existing Incremental Term Loans, except with respect to any upfront or similar fees, amortization and interest rates (including floors) that, in each case, may be agreed to among the Borrower and the lenders providing such Incremental Term Loan. Any Incremental Term Loans that have terms and provisions that differ from those of any existing Incremental Term Loans (if any) outstanding on the date on which such Incremental Term Loans are requested to made shall be made (which designated as a separate tranche of Incremental Term Loans for all purposes of this Credit Agreement and shall not as the context makes appropriate be less than three (3) Business Days nor more than 60 days after deemed and treated herein as Incremental Term Loans except as the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed relevant Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding agreement otherwise provides. Notwithstanding anything herein to the contrary contained herein or in any Incremental Term Loan Agreementcontrary, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize. In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.
(b) Any such all Incremental Term Loans shall be made, at the option Guaranty Obligations of the BorrowerGuarantors hereunder and will be secured on a pari passu basis, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (and the maturity date of any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan shall be no earlier than the Maturity Date. For the avoidance of at least $5,000,000 unless otherwise agreed to by doubt, the Administrative Agent rate of interest and the Borrower and amortization schedule (Cif applicable) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default determined by the Borrower and the applicable lenders and shall exist at be set forth in the time of the request or at the time of the making of the proposed applicable Incremental Term LoansLoan agreement;
(iiiv) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies all documents (including resolutions of the Collateral Documents or any amendments thereto that board of directors of the Administrative Agent shall deem Borrower and the Guarantors) it may reasonably necessary, signed, request relating to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication corporate or other written confirmation from necessary authority for such party Incremental Term Loan and the validity of execution such institution of a counterpart thereof by such party)Incremental Term Loans, in each case and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) the Administrative Agent scheduled maturity date of the Incremental Term Loan shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to not be earlier than the Administrative AgentMaturity Date;
(vi) [reserved]; and
(vvii) the Credit Parties shall be in compliance with the then applicable Consolidated Net Leverage Ratio and Consolidated Interest Coverage Ratio covenants specified in Section 8.18, in each case, calculated on a Pro Forma Basis after giving effect to such increase and any Loans advanced pursuant thereto. On the extent requested by any effective date of the applicable Incremental Term Loan agreement, each Incremental Term Loan Lender making party thereto severally agrees to make its portion of a term loan (each an “Incremental Term Loan, ”) in a single advance to the Borrower shall have executed and delivered in Dollars in the amount of its Incremental Term Notes Loan commitment as set forth in favor of such Incremental Term Lenders evidencing such Loan agreement. Amounts repaid on the Incremental Term Loans may not be reborrowed. The Incremental Term Loans may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein. The Applicable Percentage of each Incremental Term Loan shall be as set forth in the Incremental Term Loan agreement.
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Incremental Term Loans. (a) The Borrower shall have the right from time to time during the term of this Agreement, and subject Subject to the terms and conditions set forth in this Section 2.17herein, each Incremental Term Lender agrees, severally and not jointly, to request in writing incremental term loans (the “make Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements. Such notice Loans in Dollars to the Administrative Agent shall Borrower on the Fifth Amendment Funding Date in a principal amount equal to the amount set forth opposite the date on which name of such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment theretoLender on Schedule I hereto; provided thatprovided, that notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreementthe Credit Documents, such prior to the incurrence of Incremental Term Loans shall mature on the Maturity Fifth Amendment Funding Date, each Incremental Term Lender shall not require any mandatory prepayments thereof be entitled to amend Schedule I hereto to reallocate its Incremental Term Commitment among its Affiliates and shall not amortizeApproved Funds. In connection with any such request, the consent Amounts paid or prepaid in respect of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to Loans may not be obtainedreborrowed.
(b) Any such The terms of the Incremental Term Loans shall be madeas set forth in the Credit Agreement, at as amended by this Amendment. Notwithstanding anything to the option contrary in the Credit Agreement, the Incremental Term Loans shall initially be LIBOR Loans that have a LIBOR Period equal to the remaining duration of the BorrowerLIBOR Period then applicable to the Tranche B Term Loans outstanding on the Fifth Amendment Funding Date, and thereafter may be converted or continued as set forth in Section 4.2 of the Credit Agreement, as amended by (xthis Amendment.
c) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “The Incremental Term LenderCommitments shall automatically terminate on the earlier of (i) the making of the Incremental Term Loans on the Fifth Amendment Funding Date and (ii) 5:00 p.m., New York City time, on October 31, 2020 (the “Fifth Amendment Commitment Termination Date”); provided that any such non-existing Lender or financial institution .
d) Pursuant to Section 2.3 of the Credit Agreement, (i) the Incremental Term Loans (A) must be an Eligible Assignee, shall constitute Obligations and have all of the benefits thereof and (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed shall be secured by the Liens granted to by the Administrative Agent and for the Borrower benefit of the Secured Parties under the Credit Agreement or any other Credit Document, and (Cii) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.
(c) The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute have all of the rights, remedies, privileges and deliver protections applicable to the Administrative Agent an Incremental Term Loan Lenders under the Credit Agreement and such the other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term LoansCredit Documents.
(d) Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:
(i) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;
(ii) all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;
(iii) the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.
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Sources: Credit Agreement (Clearwater Analytics Holdings, Inc.)