Increased Commitments. (a) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to the Administrative Agent and each of the Lenders under the Facility), request to effect one or more increases in the Revolving Commitments of the Facility (or, solely to the extent set forth in Section 2.18(d) below, provide commitments under a new Facility constituting a FILO Tranche) (an “Incremental Commitment”) from one or more Additional Lenders; provided that (A) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (i) no Event of Default shall have occurred and be continuing (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under clauses (a), (b), (h) or (i) of Section 7.01) or shall result therefrom and (ii) the representations and warranties set forth Article III hereof shall be true and correct in all material respects (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which, if and only to the extent required by the Lenders providing such Incremental Commitment, shall be subject to customary “SunGard” or “certain funds” conditionality), (B) the arrangement, upfront or similar fees in respect of such Incremental Commitment and the extensions of credit thereunder shall be determined by the Borrower and the applicable Additional Lenders, and (C) except as set forth in clause (B) above or, with respect to any FILO Tranche under
Appears in 1 contract
Sources: Abl Credit Agreement (Chewy, Inc.)
Increased Commitments. (a) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to the Administrative Agent and each of the Lenders under the Facility), request to effect one or more increases in the Revolving Commitments of the Facility (or, solely to the extent set forth in Section 2.18(d) below, provide commitments under a new Facility constituting a FILO Tranche) (an “Incremental Commitment”) from one or more Additional Lenders; provided that (A) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (i) no Event of Default shall have occurred and be continuing (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under clauses (a), (b), (h) or (i) of Section 7.01) or shall result therefrom and (ii) the representations and warranties set forth Article III hereof shall be true and correct in all material respects (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which, if and only to the extent required by the Lenders providing such Incremental Commitment, shall be subject to customary “SunGard” or “certain funds” conditionality), (B) the arrangement, upfront or similar fees in respect of such Incremental Commitment and the extensions of credit thereunder shall be determined by the Borrower and the applicable Additional Lenders, and (C) except as set forth in clause (B) above or, with respect to any FILO Tranche under Section 2.18(d) below, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the existing Revolving Commitments under the Facility. Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Commitments incurred after the Amendment No. 1 Effective Date shall not exceed $100,000,000300,000,000 . Each Incremental Commitment shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(i) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the relevant Incremental Commitments.
(ii) Any Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, such applicable Additional Lenders and the Administrative Agent. Incremental Commitments shall be provided by Additional Lenders (including any Existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Additional Lender (other than any Person that is a Lender) shall be subject to the written consent of the Administrative Agent, each Issuing Bank, the Swingline Lender and the Borrower (such approval in each case not to be unreasonably withheld or delayed). An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to (x) effect the provisions of this Section and/or (y) so long as such amendments are not, in the reasonable opinion of the Administrative Agent, materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(c) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Loan” for all purposes of this Agreement and the other Loan Documents.
(d) Any Incremental Commitment may be in the form of a separate “first-in, last-out” or “last-out” tranche (the “FILO Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Rate or other Loans) among the Borrower and the Additional Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche are not be guaranteed by any Person other than the Guarantors and are not secured by any assets other than Collateral; (2) as between (x) the Revolving Loans (other than the FILO Tranche) and other Loan Document Obligations, the Noticed Cash Management Obligations and the Noticed ▇▇▇▇▇▇ and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral or application of funds under Section 7.02 shall be applied, first to obligations owing under, or with respect to, the Revolving Loans (other than the FILO Tranche) and other Loan Document Obligations, the Noticed Cash Management Obligations and the Noticed ▇▇▇▇▇▇, and second to the FILO Tranche; (3) the Borrower may not prepay Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans (including Swingline Loans) and/or amounts owed in respect of LC Disbursements (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders shall, subject to the terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the FILO Tranche) and other Loan Document Obligations, the Noticed Cash Management Obligations and the Noticed ▇▇▇▇▇▇ vis-à-vis the FILO Tranche may be made without the consent of each of the Revolving Lenders (other than the Revolving Lenders under FILO Tranche), (6) the final maturity of any FILO Tranche shall not occur, and no FILO Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such time and (7) except as otherwise set forth in this Section 2.18(d), the terms of any such FILO Tranche (other than advance rates that do not exceed 95%) shall be reasonably acceptable to the Administrative Agent.
(e) Notwithstanding anything to the contrary, this Section 2.18 shall supersede any provisions in Section 2.16 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Abl Credit Agreement (Chewy, Inc.)
Increased Commitments. (a) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to the Administrative Agent and each of the Lenders under the Facility), request to effect one or more increases in the Revolving Commitments of the Facility (or, solely to the extent set forth in Section 2.18(d) below, provide commitments under a new Facility constituting a FILO Tranche) (an “Incremental Commitment”) from one or more Additional Lenders; provided that (A) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (i) no Event of Default shall have occurred and be continuing (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under clauses (a), (b), (h) or (i) of Section 7.01) or shall result therefrom and (ii) the representations and warranties set forth Article III hereof shall be true and correct in all material respects (except in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which, if and only to the extent required by the Lenders providing such Incremental Commitment, shall be subject to customary “SunGard” or “certain funds” conditionality), (B) the arrangement, upfront or similar fees in respect of such Incremental Commitment and the extensions of credit thereunder shall be determined by the Borrower and the applicable Additional Lenders, and (C) except as set forth in clause (B) above or, with respect to any FILO Tranche underunder Section 2.18(d) below, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the existing Revolving Commitments under the Facility. Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Commitments incurred after the Amendment No. 12 Effective Date shall not exceed $300250,000,000. Each Incremental Commitment shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
Appears in 1 contract
Sources: Abl Credit Agreement (Chewy, Inc.)