New Incremental Commitments. (a) After the earlier of (i) the Delayed Draw Funding Date and (ii) the Delayed Draw Termination Date in case of Incremental Term Loans, the Borrower may from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, request, from any Lender or any Additional Lender, to add one or more new term loan facilities to the Facilities (each, an “Incremental Term Facility”; and any commitment made by a Lender thereunder, an “Incremental Commitment”; and any advance made by a Lender thereunder, an “Incremental Term Loan”), in an aggregate principal amount not to exceed, at the time of incurrence, the Incremental Amount; provided that any such request for an Incremental Commitment shall be in a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount that may be requested under this Section 2.16. (b) Each such notice shall specify the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Term Lender” and collectively, the “New Lenders”) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the proposed amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment) and (x) the Administrative Agent and the L/C Issuer shall have the right to consent (each such consent not to be unreasonably conditioned, withheld or delayed) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent and the L/C Issuer would be required under Section 10.07 for an assignment of Loans or Commitments to such Person. At the time of sending such notice to any Lenders that are approached to provide all or a portion of an Incremental Commitment, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond. Any Lender not responding within such time period shall be deemed to have declined to participate in such Incremental Commitments. The Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made under this Section 2.16. (c) If an Incremental Commitment is added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitment Effective Date”) and the final allocation of such Incremental Commitment among the New Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the final allocation of the Incremental Commitment and the Incremental Commitment Effective Date. In connection with any addition of an Incremental Commitment pursuant to this Section 2.16, the Lenders hereby authorize the Administrative Agent to enter into amendments (which may be executed and delivered solely by the Borrower and the Administrative Agent) to this Agreement and the other Loan Documents with the Borrower as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in order to give effect to such Incremental Commitments in accordance with its terms as set forth herein (including the addition of such Incremental Term Facility as a “Facility” hereunder and treated in a manner consistent with the other Facilities, as applicable, including for purposes of prepayments and voting). (d) Such Incremental Commitments shall become effective, as of the applicable Incremental Commitment Effective Date; provided that (i) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment (or, in the case of an Incremental Commitment incurred to finance a Permitted Acquisition, the condition set forth in this clause (i) shall be limited to Specified Events of Default (and not any other event of default)), (ii) after giving effect to the making of any Incremental Term Loans, the conditions set forth in Section 4.02(a) shall be satisfied (or, in the case of an Incremental Commitment incurred to finance a Permitted Acquisition, the condition set forth in this clause (ii) shall be limited to the Specified Representations (and not any other representations or warranties) (conformed as necessary for such acquisition); (iii) the Incremental Commitments, as applicable, shall be effected pursuant to one or more joinder agreements (in form and substance reasonably satisfactory to the Administrative Agent) executed and delivered by the Borrower and the Incremental Term Lenders and to the extent applicable, the Administrative Agent, and each of which shall be recorded in the Register, (iv) the Borrower shall have delivered a certificate of the Borrower dated as of the Incremental Commitment Effective Date signed by a Responsible Officer of the Borrower certifying that the conditions precedent set forth in subclauses (i), (ii) and (vi) have been satisfied and that the Borrower is in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in Section 7.11, (v) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent in all material respects with those delivered on the Closing Date under Section 4.01 with respect to the Borrower and all applicable Material Subsidiary Guarantors (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and evidencing the approval of such increase by the Borrower and each Material Subsidiary Guarantor, (vi) the Borrower shall be in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in Section 7.11 (such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) (or, prior to the first delivery thereof, on the basis of the financial information set forth in the Borrower’s most recent filed Form 10-K) as though such incurrence or acquisition had been consummated as of the first day of the applicable Test Period) and (vii) all fees and expenses owing in respect of such Incremental Commitment to the Administrative Agent and the applicable Lenders shall have been paid. (e) The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Facilities shall be as determined by the Borrower; provided that, except as set forth in the proviso below, to the extent such terms, provisions and documentation are not consistent with the Initial Term Facility, they shall be reasonably satisfactory to the Administrative Agent (it being understood that to the extent that any financial maintenance covenant is added for the benefit of any Incremental Commitment, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Facility); provided further that: (i) such Incremental Commitment and the Loans thereunder shall rank pari passu in right of payment, have the same borrower and guarantees as, and be secured on an equal and ratable basis with (by the same Collateral securing), the Initial Term Loans and the Revolving Credit Loans under the Initial Revolving Credit Facility, as applicable; (ii) the final maturity of any Tranche of Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date in effect at the time of incurrence; (iii) the Weighted Average Life to Maturity of such Incremental Term Facility shall be no shorter than the then longest remaining Weighted Average Life to Maturity of the then outstanding Tranches of Term Loans outstanding at the time of incurrence; (iv) subject to clauses (ii) and (iii) of this proviso, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Facility; (v) any Incremental Term Facility may participate on a pro rata basis or less than pro rata basis (but, except as otherwise expressly permitted by this Agreement, not on a greater than pro rata basis) in any prepayments of the Initial Term Facility pursuant to Section 2.05(a) and 2.05(b) (other than prepayments of the Initial Term Facility pursuant to Section 2.05(b)(iii)(A)(x)), as specified in the applicable joinder agreement; (vi) the All-In Yield applicable to the Incremental Term Loans of each Tranche shall be determined by the Borrower and the applicable New Lenders and shall be set forth in each applicable joinder agreement; provided that, with respect to any Incremental Term Loans of any Tranche secured on a pari passu basis in right of payment and security with the Obligations, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to 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 the Initial Term Loan is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus 50 basis points; provided that any increase in All-In Yield to any existing Initial Term Loan due to the application of a Eurodollar Rate 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 or Base Rate floor applicable to such existing Initial Term Loan; and (vii) subject to clause (vi) above, any fees payable in connection with any such Incremental Commitment shall be determined by the Borrower and the Lenders providing such Incremental Commitment. (f) The Loans and Commitments made or established pursuant to this Section 2.16 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 Collateral Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Collateral Documents continue to be perfected under the Uniform Commercial Code or otherwise to the extent required under Section 6.12 and the Collateral Documents after giving effect to the extension or establishment of any such Loans or any such Commitments.
Appears in 1 contract
Sources: Credit Agreement (Visteon Corp)
New Incremental Commitments. (a) After the earlier of (i) the Delayed Draw Funding Date and (ii) the Delayed Draw Termination Date in case of Incremental Term Loans, the Borrower may from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, request, from any Lender or any Additional Lender, to add one or more new term loan facilities to the Facilities (each, an “Incremental Term Facility”; and any commitment made by a Lender thereunder, an “Incremental Commitment”; and any advance made by a Lender thereunder, an “Incremental Term Loan”), in an aggregate principal amount not to exceed, at the time of incurrence, the Incremental Amount; provided that any such request for an Incremental Commitment shall be in a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount that may be requested under this Section 2.16.
(b) Each such notice shall specify the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Term Lender” and collectively, the “New Lenders”) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the proposed amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment) and (x) the Administrative Agent and the L/C Issuer shall have the right to consent (each such consent not to be unreasonably conditioned, withheld or delayed) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent and the L/C Issuer would be required under Section 10.07 for an assignment of Loans or Commitments to such Person. At the time of sending such notice to any Lenders that are approached to provide all or a portion of an Incremental Commitment, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond. Any Lender not responding within such time period shall be deemed to have declined to participate in such Incremental Commitments. The Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made under this Section 2.16.
(c) If an Incremental Commitment is added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitment Effective Date”) and the final allocation of such Incremental Commitment among the New Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the final allocation of the Incremental Commitment and the Incremental Commitment Effective Date. In connection with any addition of an Incremental Commitment pursuant to this Section 2.16, the Lenders hereby authorize the Administrative Agent to enter into amendments (which may be executed and delivered solely by the Borrower and the Administrative Agent) to this Agreement and the other Loan Documents with the Borrower as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in order to give effect to such Incremental Commitments in accordance with its terms as set forth herein (including the addition of such Incremental Term Facility as a “Facility” hereunder and treated in a manner consistent with the other Facilities, as applicable, including for purposes of prepayments and voting).
(d) Such Incremental Commitments shall become effective, as of the applicable Incremental Commitment Effective Date; provided that (i) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment (or, in the case of an Incremental Commitment incurred to finance a Permitted Acquisition, the condition set forth in this clause (i) shall be limited to Specified Events of Default (and not any other event of default)), (ii) after giving effect to the making of any Incremental Term Loans, the conditions set forth in Section 4.02(a) shall be satisfied (or, in the case of an Incremental Commitment incurred to finance a Permitted Acquisition, the condition set forth in this clause (ii) shall be limited to the Specified Representations (and not any other representations or warranties) (conformed as necessary for such acquisition); (iii) the Incremental Commitments, as applicable, shall be effected pursuant to one or more joinder agreements (in form and substance reasonably satisfactory to the Administrative Agent) executed and delivered by the Borrower and the Incremental Term Lenders and to the extent applicable, the Administrative Agent, and each of which shall be recorded in the Register, (iv) the Borrower shall have delivered a certificate of the Borrower dated as of the Incremental Commitment Effective Date signed by a Responsible Officer of the Borrower certifying that the conditions precedent set forth in subclauses (i), (ii) and (vi) have been satisfied and that the Borrower is in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in Section 7.11, (v) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent in all material respects with those delivered on the Closing Date under Section 4.01 with respect to the Borrower and all applicable Material Subsidiary Guarantors (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and evidencing the approval of such increase by the Borrower and each Material Subsidiary Guarantor, (vi) the Borrower shall be in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in Section 7.11 (such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) (or, prior to the first delivery thereof, on the basis of the financial information set forth in the Borrower’s most recent filed Form 10-K) as though such incurrence or acquisition had been consummated as of the first day of the applicable Test Period) and (vii) all fees and expenses owing in respect of such Incremental Commitment to the Administrative Agent and the applicable Lenders shall have been paid.
(e) The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Facilities shall be as determined by the Borrower; provided that, except as set forth in the proviso below, to the extent such terms, provisions and documentation are not consistent with the Initial Term Facility, they shall be reasonably satisfactory to the Administrative Agent (it being understood that to the extent that any financial maintenance covenant is added for the benefit of any Incremental Commitment, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Facility); provided further that:
(i) such Incremental Commitment and the Loans thereunder shall rank pari passu in right of payment, have the same borrower and guarantees as, and be secured on an equal and ratable basis with (by the same Collateral securing), the Initial Term Loans and the Revolving Credit Loans under the Initial Revolving Credit Facility, as applicable;
(ii) the final maturity of any Tranche of Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date in effect at the time of incurrence;
(iii) the Weighted Average Life to Maturity of such Incremental Term Facility shall be no shorter than the then longest remaining Weighted Average Life to Maturity of the then outstanding Tranches of Term Loans outstanding at the time of incurrence;
(iv) subject to clauses (ii) and (iii) of this proviso, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Facility;
(v) any Incremental Term Facility may participate on a pro rata basis or less than pro rata basis (but, except as otherwise expressly permitted by this Agreement, not on a greater than pro rata basis) in any prepayments of the Initial Term Facility pursuant to Section 2.05(a) and 2.05(b) (other than prepayments of the Initial Term Facility pursuant to Section 2.05(b)(iii)(A)(x)), as specified in the applicable joinder agreement;
(vi) the All-In Yield applicable to the Incremental Term Loans of each Tranche shall be determined by the Borrower and the applicable New Lenders and shall be set forth in each applicable joinder agreement; provided that, with respect to any Incremental Term Loans of any Tranche secured on a pari passu basis in right of payment and security with the Obligations, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to 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 the Initial Term Loan is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus 50 basis points; provided that any increase in All-In Yield to any existing Initial Term Loan due to the application of a Eurodollar Rate 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 or Base Rate floor applicable to such existing Initial Term Loan; and
(vii) subject to clause (vi) above, any fees payable in connection with any such Incremental Commitment shall be determined by the Borrower and the Lenders providing such Incremental Commitment.
(f) The Loans and Commitments made or established pursuant to this Section 2.16 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 Collateral Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Collateral Documents continue to be perfected under the Uniform Commercial Code or otherwise to the extent required under Section 6.12 and the Collateral Documents after giving effect to the extension or establishment of any such Loans or any such Commitments.Collateral
Appears in 1 contract
Sources: Credit Agreement (Visteon Corp)